Petition for Writ of Certiorari — Gregory Allen Bonnie, Petitioner v. Dunbar, Warden

Supreme Court briefJun 4, 2026

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No. 25In the

Supreme Court of the United States

GREGORY ALLEN BONNIE,

Petitioner,

WARDEN DUNBAR,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Patricia Richman

Office of the Federal

Public Defender for the

District of Maryland

6411 Ivy Lane

Greenbelt, MD 20770

John L. Warren III

Law Office of Bill Nettles

2008 Lincoln Street

Columbia, SC 29201

David A. O’Neil

Counsel of Record

Debevoise & Plimpton LLP

801 Pennsylvania Ave. N.W.

Washington, D.C. 20004

daoneil@debevoise.com

(202) 383-8000

James Stramm

Jacob Hochberger

Isabel Gutenplan

Margaret Jewett

Debevoise & Plimpton LLP

66 Hudson Boulevard

New York, NY 10001

Linh K. Tang

Debevoise & Plimpton LLP

650 California Street

San Francisco, CA 94108

June 4, 2026

393255

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

In Section 3632(d)(4)(D) of the First Step Act, Congress provided prisoners the ability to earn time credits for participating in certain recidivism-reduction

programs. Under the Act, a prisoner is eligible to earn

such credits unless the prisoner “is serving a sentence

for a conviction” under specified statutes. Petitioner

is serving a 120-month sentence for credit-eligible

drug offenses and a separate, consecutive 24-month

sentence imposed in a separate judgment for a creditineligible offense.

The question presented is:

Whether Section 3632(d)(4)(D) bars a prisoner

from earning any First Step Act time credits while

serving a credit-eligible sentence because the prisoner

also has a separate, consecutive credit-ineligible sentence imposed in a separate judgment.

PARTIES TO THE PROCEEDINGS

Gregory Allen Bonnie, Petitioner here, was the

Petitioner-Appellant below.

Warden Dunbar, Respondent here, was the Respondent-Appellee below.

iii

RELATED PROCEEDINGS

United States Court of Appeals for the Fourth Circuit:

Bonnie v. Dunbar, No. 24-6665 (Nov. 5, 2025)

United States District Court for the District of

South Carolina:

Bonnie v. Dunbar, No. 4:23-cv-01215 (Jan. 16,

2024)

Bonnie v. Dunbar, No. 4:23-cv-01215 (May 9,

2024)

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF APPENDICES ......................................... v

TABLE OF AUTHORITIES .......................................vi

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

INTRODUCTION ........................................................1

STATEMENT ..............................................................4

REASONS FOR GRANTING THE WRIT ..................7

The Decision Below Is Wrong. .........................8

The Question Is Important and

Recurring. .......................................................13

This Case Is an Ideal Vehicle. ........................16

CONCLUSION ..........................................................17

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUI T, FILED NOVEMBER 5,

2025 ........................................................................1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, FLORENCE

DIVISION, FILED MAY 9, 2024 ......................... 38a

A PPENDI X C — REPORT AND REC OMMENDAT ION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

SOUTH CAROLINA, FLORENCE DIVISION,

FILED JANUARY 16, 2024 ................................. 68a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED JANUARY 5,

2026 ...................................................................... 86a

APPENDIX E — STATUTORY PROVISIONS

INVOLVED ..........................................................88a

TABLE OF AUTHORITIES

CASES

Dep’t of Homeland Sec. v. MacLean,

574 U.S. 383 (2015) ........................................... 10

Fletcher v. Acting Warden of FCI-Marion,

No. 25-cv-560-JPG, 2025 WL 2687007

(S.D. Ill. Sept. 19, 2025) .................................... 14

Giovinco v. Pullen,

118 F.4th 527 (2d Cir. 2024) ..................... 3, 7, 15

Hill v. King,

No. 23-cv-1365 (KMM/JFD), 2025 WL

1020604 (D. Minn. Apr. 7, 2025) .................. 3, 14

Keeling v. Lemaster,

No. 22-6126, 2023 WL 9061914 (6th Cir.

Nov. 22, 2023)...................................................... 3

Martinez v. Rosalez,

No. 23-50406, 2024 WL 140438 (5th Cir.

Jan. 12, 2024) ...................................................... 3

Monserrate v. Warden,

No. 26-cv-331, 2026 WL 852077 (M.D.

Pa. Mar. 27, 2026) ......................................... 3, 14

Republic of Sudan v. Harrison,

587 U.S. 1 (2019) ................................................. 8

vii

Sok v. Eischen,

No. 23-1025, 2023 WL 5282709 (8th Cir.

Aug. 17, 2023) ..................................................... 3

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022) ............................................. 9

Teed v. Warden Allenwood FCI Low,

No. 23-1181, 2023 WL 4556726 (3d Cir.

July 17, 2023) ...................................................... 3

Tinlin v. Hudson,

No. CV-24-00425-TUC-JCH (MSA), 2025

WL 1898207 (D. Ariz. July 9, 2025) ................. 14

United States v. Hayes,

555 U.S. 415 (2009) ............................................. 9

United States v. James,

151 F.4th 28 (2d Cir. 2025) ............................... 15

STATUTES

18 U.S.C.

§ 924(c)................................................... 2, 5–6, 11

§ 3584................................................................... 1

§ 3584(c)..................................... 2, 6, 8, 10–12, 16

§ 3632................................................. 1–13, 16–17

§ 3635(4) .............................................................. 9

28 U.S.C. § 1254(1) ................................................... 1

viii

34 U.S.C. § 60541 ........................................... 1, 3, 10

First Step Act of 2018, Pub. L. No. 115-391,

132 Stat. 5194 (2018) ............................ 1, 4, 9–10

Second Chance Act of 2007, Pub. L. No. 110199, 122 Stat. 657 (2008) .................................. 10

OTHER AUTHORITIES

James M. Byrne et al., Independent Review

Committee Report Pursuant to the Requirements of Title I Section 107(g) of the

First Step Act (FSA) of 2018 (P.L. 115391), United States Committee on the

Judiciary (Dec. 21, 2020) .................................. 13

U.S. Sentencing Comm’n, SPSS Datafile for

Fiscal Year 2023,

https://www.ussc.gov/research/datafiles/commission-datafiles (last visited

June 4, 2026) ..................................................... 15

OPINIONS BELOW

The decision of the court of appeals (Pet. App. 1a–

37a) is reported at 157 F.4th 610. The decision of the

district court (Pet. App. 38a–67a) is unreported but

available at 2024 WL 5691164. The report and recommendation of the magistrate judge (Pet. App. 68a–

85a) is unreported but available at 2024 WL 5691015.

JURISDICTION

The court of appeals entered judgment on November 5, 2025. On March 10, 2026, Chief Justice Roberts

extended the time to file this petition to June 4, 2026.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of 18 U.S.C. §§ 3584 and

3632 and 34 U.S.C. § 60541 are reproduced in the appendix. Pet. App. 88a–100a.

INTRODUCTION

The First Step Act gives federal prisoners a strong

incentive to participate in recidivism-reduction programming. A prisoner who successfully completes

qualifying programming “shall earn time credits” unless he falls within a limited statutory exception. 18

U.S.C. § 3632(d)(4)(A). The exception applies when a

prisoner “is serving a sentence for a conviction” under

one of several enumerated provisions of law. Id.

§ 3632(d)(4)(D).

This case concerns what that phrase means. Petitioner is serving two consecutive sentences imposed

in separate judgments. The first is a 120-month sentence for drug-trafficking offenses that are eligible for

First Step Act time credits. The second is a 24-month

supervised-release revocation sentence arising from a

prior conviction under 18 U.S.C. § 924(c), which is not

eligible for time credits. The Bureau of Prisons

(“BOP”) treated those two sentences as a single aggregate term and concluded that the 24-month ineligible

sentence disqualified Petitioner from earning time

credits for all 144 months of custody. The district

court agreed and granted summary judgment for

BOP. Pet. App. 38a.

A divided Fourth Circuit affirmed. Pet. App. 2a,

18a. The court held that Section 3632(d)(4)(D) disqualifies the “prisoner, not a sentence,” and that Section 3584(c)’s administrative aggregation rule converts Petitioner’s 24-month ineligible sentence into

the full 144-month aggregate term. Pet. App. 9a–12a.

Judge Wynn dissented. Pet. App. 19a–37a. In his

view, the statutory text answers the question: Petitioner cannot “‘serve’ a 24-month sentence for 144

months,” and Congress’s choice to tie ineligibility to

the sentence being served forecloses a rule under

which one short, separate sentence taints every other

sentence. Pet. App. 19a, 23a.

The dissent was correct. Section 3632(d)(4)(D)

asks whether the prisoner “is serving a sentence for a

conviction” under an enumerated provision. That language is temporal and sentence specific. It does not

ask whether the prisoner has ever received a disqualifying conviction, whether any conviction in an aggregate term is disqualifying, or whether the prisoner is

serving a “term of imprisonment” that includes a disqualifying offense. Congress knew how to use those

broader formulations. Indeed, in a neighboring statutory scheme enacted by the same Congress, Congress

referred to a “term of imprisonment” based on an “offense or offenses” and expressly incorporated an aggregate-term rule. 34 U.S.C. § 60541(g)(5)(D)(i). Congress did not use that language in Section

3632(d)(4)(D).

The Fourth Circuit’s contrary rule has serious and

recurring consequences. Under that rule, a one- or

two-month ineligible sentence for prison contraband

can disqualify a prisoner from earning credits on a

decade-long eligible sentence. District courts have already reached that result. See, e.g., Monserrate v.

Warden, No. 26-cv-331, 2026 WL 852077, at *2 (M.D.

Pa. Mar. 27, 2026); Hill v. King, No. 23-cv-1365

(KMM/JFD), 2025 WL 1020604, at *6 (D. Minn. Apr.

7, 2025). The same logic applies no matter how short

the ineligible sentence, how long the eligible sentence,

or how unrelated the two judgments are. That is not

a natural reading of a statute designed to encourage

prisoners to reduce their recidivism risk.

The Court should grant review to address the

Fourth Circuit’s erroneous interpretation. The Second, Third, Fifth, Sixth, and Eighth Circuits have also

construed the First Step Act in this incorrect way. See

Giovinco v. Pullen, 118 F.4th 527, 529 (2d Cir. 2024);

Teed v. Warden Allenwood FCI Low, No. 23-1181,

2023 WL 4556726, at *2 (3d Cir. July 17, 2023) (per

curiam); Martinez v. Rosalez, No. 23-50406, 2024 WL

140438, at *4 (5th Cir. Jan. 12, 2024) (per curiam);

Keeling v. Lemaster, No. 22-6126, 2023 WL 9061914,

at *1 (6th Cir. Nov. 22, 2023); Sok v. Eischen, No. 231025, 2023 WL 5282709, at *1 (8th Cir. Aug. 17, 2023).

Further percolation is unnecessary. Left to stand, the

lower court’s reasoning will deprive thousands of prisoners of potentially years of time credits that Congress intended them to receive. And it will embolden

prosecutors to tack on minor, credit-ineligible charges

to prevent prisoners from receiving credits on longer,

eligible sentences.

This case is a clean vehicle to decide the question.

The issue was dispositive below. The Fourth Circuit

majority and dissent addressed the statutory text,

structure, and consequences. No factual or procedural

complication would prevent this Court from resolving

the question presented. The Court should grant review and reverse.

STATEMENT

1. Congress enacted the First Step Act in 2018 to

expand federal rehabilitation programming and reduce recidivism. Title I of the Act is titled “Recidivism

Reduction.” First Step Act of 2018, Pub. L. No. 115391, Title I, 132 Stat. 5194, 5195 (2018). It directs the

Attorney General to develop a “risk and needs assessment system” to determine each prisoner’s recidivism

risk, identify programming suited to that prisoner,

and provide incentives for successful participation. 18

U.S.C. § 3632(a), (d).

The principal incentive is earned time credit. A

prisoner who completes evidence-based recidivism-reduction programming or productive activities “shall

earn” 10 days of time credits for every 30 days of successful participation. Id. § 3632(d)(4)(A)(i). Prisoners

who maintain a minimum or low risk of recidivism

may earn an additional five days for every 30 days of

successful participation. Id. § 3632(d)(4)(A)(ii). Those

credits may be applied toward prerelease custody or

supervised release when the prisoner satisfies the

statutory requirements. See id. § 3624(g).

Congress made time-credit eligibility broad, but

not universal. Section 3632(d)(4)(D) creates a limited

exception for prisoners serving sentences for specified

convictions. It provides:

A prisoner is ineligible to receive time

credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law:

Id. § 3632(d)(4)(D). The statute then lists disqualifying offenses. Id. § 3632(d)(4)(D)(i)–(lxviii).

2. On May 27, 2021, Petitioner was sentenced to

120 months’ imprisonment for two drug-trafficking offenses. Pet. App. 4a. Those offenses are eligible for

First Step Act time credits.

In connection with those proceedings, Petitioner

also admitted to violating the conditions of supervised

release imposed for a prior conviction under 18 U.S.C.

§ 924(c). Pet. App. 4a. He received a separate, consecutive 24-month revocation sentence. Pet. App. 4a.

That sentence is not eligible for First Step Act time

credits. See 18 U.S.C. § 3632(d)(4)(D)(xxii). The eligible 120-month drug sentence and the ineligible 24month revocation sentence were imposed in separate

judgments. See Pet. App. 40a–41a.

BOP nevertheless aggregated the two sentences

and treated the ineligible revocation sentence as disqualifying Petitioner from earning time credits for the

entire 144-month aggregate term. Pet. App. 2a–3a.

Petitioner exhausted administrative remedies and

filed a habeas petition in the District of South Carolina. Pet. App. 5a.

3. The magistrate judge recommended granting

BOP’s motion for summary judgment. Pet. App. 85a.

The recommendation relied on 18 U.S.C. § 3584(c),

which states that multiple terms of imprisonment ordered to run consecutively or concurrently “shall be

treated for administrative purposes as a single, aggregate term of imprisonment.” Pet. App. 78a, 80a.

The district court adopted the recommendation

and granted summary judgment against Petitioner.

Pet. App. 67a. The court concluded that “it is reasonable for the BOP to apply the aggregation rule to 18

U.S.C. § 3632(d)(4)(D) and conclude that if one of the

aggregated convictions precludes the inmate from

earning time credits, the entire aggregated sentence

has the same effect.” Pet. App. 57a.

A divided panel of the Fourth Circuit affirmed.

Pet. App. 2a, 18a. The majority noted that Section

3632(d)(4)(D) disqualifies a “prisoner, not a sentence,”

from receiving time credits. Pet. App. 9a. The court

reasoned that the ineligibility provision identifies

prisoners whose offenses show a high risk of recidivism and that Congress meant to exclude those prisoners categorically. Pet. App. 8a, 9a, 15a–16a. The

court also relied on Section 3584(c), reasoning that

once BOP aggregated Petitioner’s sentences for administrative purposes, Petitioner’s Section 924(c) conviction was “defined by § 3584(c) to be his aggregate

144-month sentence.” Pet. App. 15a.

Judge Wynn dissented. He began with what he

described as the “obvious” point that Petitioner could

not “‘serve’ a 24-month sentence for 144 months.” Pet.

App. 19a. Judge Wynn emphasized that BOP itself

had acknowledged in parallel litigation that “‘the most

natural reading of § 3632(d)(4)(D), standing alone,

might render ineligible only the individual sentence

applicable to the ineligible offense.” Pet. App. 24a

(quoting Giovinco, 118 F.4th at 530). And he explained that Congress’s choice to use “sentence” in

Section 3632(d)(4)(D), while using broader aggregateterm language elsewhere, demonstrated that the ineligibility provision applies only to the sentence for the

disqualifying conviction. Pet. App. 32a–33a.

Judge Wynn also warned that the majority’s rule

produces “absurd” results. Pet. App. 35a. In Petitioner’s case, a 24-month ineligible sentence eliminates time-credit eligibility for a separate 120-month

eligible sentence. Id. In other cases, the same rule

could permit a short ineligible sentence to nullify

time-credit eligibility for a much longer eligible sentence. Pet. App. 36a. Judge Wynn concluded that it

was “inconceivable that the Congress which drafted

the First Step Act—legislation designed to encourage

rehabilitation—intended its core incentive to be so

easily nullified.” Id.

REASONS FOR GRANTING THE WRIT

The decision below is wrong, the issue is important, and the case is a clean vehicle. The Fourth

Circuit converted a sentence-specific limitation into a

prisoner-wide bar. That reading conflicts with the

text Congress enacted, disregards the statutory distinction between a “sentence” and an aggregate “term

of imprisonment,” undermines the structure of the

First Step Act, and produces consequences Congress

could not have intended. The question has already

recurred in courts across the country and affects thousands of prisoners. This Court’s review is warranted.

A. The Decision Below Is Wrong.

The Fourth Circuit’s interpretation fails at every

step. Section 3632(d)(4)(D) speaks in sentence-specific terms. Section 3584(c) does not rewrite that language. And the structure of the First Step Act refutes

the majority’s premise that Congress used the timecredit ineligibility provision as a proxy for fixed recidivism risk.

1. Section 3632(d)(4)(D) Disqualifies the

Sentence Being Served, Not Every Sentence in an Aggregate Term.

Statutory interpretation begins with the text. Republic of Sudan v. Harrison, 587 U.S. 1, 8 (2019).

The relevant text states that “[a] prisoner is ineligible to receive time credits” if the prisoner “is serving

a sentence for a conviction” under an enumerated provision. 18 U.S.C. § 3632(d)(4)(D).

That language has a straightforward meaning. A

prisoner is ineligible while serving the sentence for

the disqualifying conviction. It does not say that a

prisoner is ineligible if he has ever been convicted of a

disqualifying offense. It does not say that a prisoner

is ineligible if any part of an aggregate term includes

a disqualifying conviction. And it does not say that

one ineligible sentence renders every separate eligible

sentence ineligible.

The statute’s use of the singular phrase “a sentence for a conviction” reinforces that reading. Id.

Congress tied ineligibility to a particular sentence for

a particular conviction. Cf. United States v. Hayes,

555 U.S. 415, 421–22 (2009) (use of the singular “element” “suggests that Congress intended to describe

only one required element” and had Congress intended otherwise “it likely would have used the plural

‘elements’ as it had done in other offense-defining provisions”). The Fourth Circuit’s reading requires treating “a sentence for a conviction” as an aggregate term

for multiple convictions. That is not the language

Congress used.

The phrase “is serving” points in the same direction. As Judge Wynn explained, the statute uses the

present progressive tense, which describes an action

occurring now. Pet. App. 25a. The statute therefore

asks what sentence the prisoner is serving at the relevant time. A prisoner serving consecutive sentences

does not serve the same 24-month sentence for 144

months. Pet. App. 24a–25a. The temporal condition

disappears when the disqualifying sentence ends.

If Congress had wanted a prisoner-wide bar, it

knew how to create one. Congress could have made

prisoners ineligible if they were “convicted of” any disqualifying offense. It could have referred to a “term of

imprisonment” based on one or more disqualifying offenses. It did neither. Instead, Congress focused on

whether the prisoner “is serving a sentence for a conviction” under one of the listed provisions. 18 U.S.C.

§ 3632(d)(4)(D).

That choice matters. See Sw. Airlines Co. v. Saxon,

596 U.S. 450, 457–58 (2022). In the First Step Act,

Congress elsewhere used the phrase “term of imprisonment.” See 18 U.S.C. § 3635(4) (defining “prisoner”

as a person “sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense”).

And in the Second Chance Act, including in a provision amended by the same Congress in 2018, Congress

used language that expressly accounts for multiple offenses and aggregate terms.

See 34 U.S.C.

§ 60541(g)(5)(C), (D). Section 60541(g)(5)(C) defines

“term of imprisonment” to include “multiple terms of

imprisonment ordered to run consecutively or concurrently, which shall be treated as a single, aggregate

term of imprisonment for purposes of this section.”

Section 60541(g)(5)(D), as amended by the First Step

Act, then defines an eligible terminally ill offender by

reference to a “term of imprisonment based on conviction for an offense or offenses that do not include” certain excluded offenses.

Those provisions show that Congress knew how to

make eligibility turn on an aggregate term that includes any disqualifying offense. The same Congress

did not use that language in Section 3632(d)(4)(D).

The omission is dispositive. See Dep’t of Homeland

Sec. v. MacLean, 574 U.S. 383, 391 (2015).

2. Section 3584(c) Does Not Rewrite Section 3632(d)(4)(D).

The Fourth Circuit’s contrary reading rests principally on Section 3584(c). That provision states that

multiple terms of imprisonment ordered to run consecutively or concurrently “shall be treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C. § 3584(c).

Section 3584(c) does not answer the question here.

It is an administrative rule governing how BOP manages multiple terms of imprisonment. It does not say

that every statutory consequence attached to one

sentence applies to every other sentence. Nor does it

authorize BOP to replace the words “a sentence for a

conviction” in Section 3632(d)(4)(D) with “a single, aggregate term of imprisonment.”

The distinction between “sentence” and “term of

imprisonment” is central. Section 3584(c) aggregates

“terms of imprisonment,” not “sentences.” Congress

used the word “sentence” in Section 3632(d)(4)(D), and

that word refers to the punishment imposed for a conviction. The Fourth Circuit’s reading erases that difference. It treats an aggregate term of imprisonment

as though it were itself the “sentence for a conviction”

under Section 3632(d)(4)(D). But Petitioner’s Section

924(c)-based revocation sentence is 24 months, not

144 months. Pet. App. 19a–20a.

The Seventh Circuit’s treatment of related First

Step Act resentencing issues confirms why automatic

aggregation is not the end of the inquiry. In United

States v. Curtis, the court considered whether a district court could reduce sentences for both covered and

non-covered offenses under the First Step Act. 66

F.4th 690, 693 (7th Cir. 2023). The court acknowledged the general rule that multiple terms of imprisonment may be treated as a single aggregate term, but

it did not stop there. Id. at 694. It instead asked

whether the sentences were interdependent—

whether they were grouped, whether the sentencing

court imposed a global package, and whether the sentences were related to each other. Id. The point is not

that Curtis controls this case; it does not. The point is

that federal law does not require courts to treat aggregation for administrative purposes as a command to

disregard distinct sentences imposed for distinct convictions.

The same distinction matters here. Petitioner’s eligible drug sentence and ineligible revocation sentence were imposed in separate judgments. Pet. App.

65a. They are consecutive. Pet. App. 71a. Nothing in

Section 3584(c) converts the shorter ineligible sentence into the longer eligible one.

3. The First Step Act’s Structure Refutes

the Fourth Circuit’s Recidivism-Risk

Rationale.

The Fourth Circuit reasoned that Section

3632(d)(4)(D) identifies prisoners with elevated recidivism risk and therefore disqualifies them as persons,

not sentence by sentence. Pet. App. 8a, 16a. That rationale cannot be reconciled with the Act’s structure.

First, recidivism risk does not determine whether

a prisoner may earn time credits. Prisoners at every

risk level may earn credits. 18 U.S.C. § 3632(d)(4)(A).

Low- and minimum-risk prisoners may earn credits at

a higher rate, id. § 3632(d)(4)(A)(ii), but high-risk

prisoners are not excluded from earning them. The

statute uses risk level to calibrate incentives; it does

not treat high risk as a categorical bar.

Second, Congress treated recidivism risk as dynamic. The risk and needs assessment system must

ensure that “all prisoners at each risk level have a

meaningful opportunity to reduce their classification

during the period of incarceration.”

Id.

§ 3632(a)(5)(A). Risk reassessments must account for

dynamic factors, including “indicators of progress”

and participation in programming. Id. § 3632(a)(4),

(d)(5). The time-credit system is designed to encourage prisoners to participate in programming so that

they reduce their risk. A rule that permanently disables a prisoner from earning credits for an eligible sentence because of a separate ineligible sentence works

against that design.

Third, Congress did not equate offense of conviction with fixed recidivism risk. Section 3632 requires

an individualized assessment system. Id. § 3632(a).

The crime of conviction is not the sole measure of risk,

and the Independent Review Committee has reported

“no significant difference in the collective recidivismrisk profiles of BOP’s [credit]-eligible and [credit]-ineligible inmate populations.” James M. Byrne et al.,

Independent Review Committee Report Pursuant to

the Requirements of Title I Section 107(g) of the First

Step Act (FSA) of 2018 (P.L. 115-391), United States

Committee on the Judiciary (Dec. 21, 2020), at 2,

https://perma.cc/3SGR-QZTP. The Fourth Circuit’s

contrary premise—that a disqualifying conviction

necessarily predicts an elevated recidivism risk for all

time and all sentences—does not reflect the system

Congress created.

B. The Question Is Important and Recurring.

The question presented has substantial practical

consequences. Under the Fourth Circuit’s rule, one

short ineligible sentence can nullify time-credit eligibility for a much longer eligible sentence. That result

affects not only Petitioner but also prisoners across

the federal system.

Petitioner’s case illustrates the problem. A 24month ineligible revocation sentence—imposed in a

separate judgment—renders him unable to earn credits on a 120-month eligible drug sentence. The consequence may be years of additional custody. Petitioner

alleged below that BOP’s rule could cost him up to

1800 days, or nearly five years, of time credits. Petition for Writ of Habeas Corpus, Bonnie v. Dunbar, No.

4:23-cv-01215-DCN (D.S.C. 2023), Dkt. No. 1, at 5

(noting that Bonnie could earn 15 days a month of

time credit for his 120-month sentence).

Other cases show that Petitioner’s situation is not

unusual. In Monserrate, a prisoner serving a 170month credit-eligible drug sentence received a onemonth consecutive sentence for contraband. 2026 WL

852077, at *2. The district court held that the onemonth ineligible sentence disqualified the entire 171month term. Id. In Hill, a two-month ineligible sentence disqualified a 132-month sentence. 2025 WL

1020604, at *6. District courts have reached similar

results when the ineligible sentence made up a small

fraction of the total term. See Fletcher v. Acting Warden of FCI-Marion, No. 25-cv-560-JPG, 2025 WL

2687007 (S.D. Ill. Sept. 19, 2025); Tinlin v. Hudson,

No. CV-24-00425-TUC-JCH (MSA), 2025 WL

1898207, at *1 (D. Ariz. July 9, 2025), report and recommendation adopted, 2025 WL 2468802 (D. Ariz.

Aug. 27, 2025).

Nothing in the Fourth Circuit’s reasoning supplies

a limiting principle. If a one-month sentence can disqualify a 170-month sentence, a one-day sentence can

disqualify a decades-long sentence. Judge Wynn was

right to describe that consequence as “troubling” and

“so illogical that it strains credulity to suggest Congress intended it.” Pet. App. 35a–36a.

The rule below also creates a risk of sentence manipulation. If any ineligible sentence bars credits on

all eligible sentences, then the addition of a short ineligible count can eliminate a major statutory benefit.

Judge Wynn warned of that risk, Pet. App. 36a, and

the concern is not theoretical. In United States v.

James, 151 F.4th 28, 40–43 (2d Cir. 2025), the Second

Circuit reversed a judgment that included an additional conviction designed solely to eliminate First

Step Act time credits, explaining that such an approach would “contravene Congress’s intent to allow a

prisoner to earn a reduction in the time to be served.”

The issue is also nationally recurring. According

to the U.S. Sentencing Commission data cited below,

at least 2,274 people in 2023 received sentences combining credit-eligible and credit-ineligible crimes. See

U.S. Sentencing Comm’n, SPSS Datafile for Fiscal

Year

2023,

https://www.ussc.gov/research/datafiles/commission-datafiles (last visited June 4, 2026).

Preventing those prisoners from earning and applying

credits on eligible sentences means additional prison

time and substantial incarceration costs. The amici

below estimated that if those 2,274 prisoners earned

credits toward earlier release, the savings from 2023

alone would exceed $97 million. Br. of Amici Curiae

Due Process Institute and National Association of

Criminal Defense Lawyers in Support of PetitionerAppellant at 17–18, Bonnie v. Dunbar, No. 24-6665,

Dkt. No 27-1.

The absence of a developed circuit split should not

deter review. Multiple courts of appeals have already

adopted BOP’s categorical aggregation position. See,

e.g., Giovinco, 118 F.4th 527. The Fourth Circuit has

now done so in a published, divided opinion. Further

percolation is unlikely to produce a better vehicle.

BOP’s nationwide position is fixed, prisoners lose

credits while litigation proceeds, and the issue is

purely statutory.

This Court often grants review when a recurring

federal question has produced one-sided lower-court

entrenchment that is wrong and consequential. This

case warrants that treatment.

C. This Case Is an Ideal Vehicle.

This case cleanly presents the question whether a

separate, consecutive ineligible sentence prevents a

prisoner from earning First Step Act time credits

while serving an eligible sentence.

The issue was preserved and dispositive below.

The district court granted summary judgment on the

ground that Petitioner’s ineligible sentence disqualified the entire aggregate term. Pet. App. 65a–66a.

The Fourth Circuit affirmed on the same basis. Pet.

App. 18a. The majority addressed the statutory text,

Section 3584(c), and the asserted relationship between offense-based ineligibility and recidivism risk.

Pet. App. 7a–16a. The dissent addressed the same

questions and explained why the majority’s reading

was inconsistent with the text, structure, and consequences of the Act. Pet. App. 19a–37a.

No factual dispute or alternative ground would

prevent this Court from deciding the question presented. Petitioner’s two sentences were imposed in

separate judgments. Pet. App. 65a. One sentence is

credit-eligible; the other is not. Pet. App. 2a. BOP

denied credits because it treated the ineligible sentence as disqualifying the full aggregate term. Pet.

App. 2a–3a.

If this Court holds that Section

3632(d)(4)(D) disqualifies only the sentence for the ineligible conviction, the judgment below must be reversed. Id.

This case is also a particularly useful vehicle because Petitioner’s separate judgments present the

question in its cleanest form. The Court need not decide how Section 3632(d)(4)(D) applies to a single

judgment imposing an integrated sentencing package,

grouped counts, or concurrent sentences for related offenses. It need decide only whether a separate, consecutive ineligible sentence imposed in a separate

judgment bars credits while the prisoner is serving a

separate eligible sentence. The statutory text answers that question no.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DAVID A. O’NEIL

Counsel of Record

DEBEVOISE & PLIMPTON LLP

801 Pennsylvania Ave. N.W.

Washington, D.C. 20004

daoneil@debevoise.com

(202) 383-8000

JAMES STRAMM

JACOB HOCHBERGER

ISABEL GUTENPLAN

MARGARET JEWETT

DEBEVOISE & PLIMPTON LLP

66 Hudson Boulevard

New York, NY 10001

LINH K. TANG

DEBEVOISE & PLIMPTON LLP

650 California Street

San Francisco, CA 94108

PATRICIA RICHMAN

OFFICE OF THE FEDERAL PUBLIC

DEFENDER FOR THE DISTRICT OF

MARYLAND

6411 Ivy Lane

Greenbelt, MD 20770

JOHN L. WARREN III

LAW OFFICE OF BILL NETTLES

2008 Lincoln Street

Columbia, SC 29201

June 4, 2026

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

F OR T H E F OU RT H CI RCU I T,

FILED NOVEMBER 5, 2025 . . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES DISTRICT COURT

F OR T H E DI S T R IC T OF S OU T H

CA ROLI NA , FLOR ENCE DI V I SION,

FILED MAY 9, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 38a

A PPENDI X C — REPORT A ND

RECOMMENDATION OF THE

UNITED STATES DISTRICT COURT

F OR T H E DI S T R IC T OF S OU T H

CA ROLI NA , FLOR ENCE DI V I SION,

FILED JANUARY 16, 2024 . . . . . . . . . . . . . . . . . . 68a

A PPEN DI X D — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

JANUARY 5, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 86a

APPENDIX E — STATUTORY PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED NOVEMBER 5, 2025

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-6665

GREGORY ALLEN BONNIE,

Petitioner-Appellant,

WARDEN DUNBAR,

Respondent-Appellee.

DUE PROCESS INSTITUTE; NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Amici Supporting Appellant.

Appeal from the United States District Court for

the District of South Carolina, at Florence. David C.

Norton, District Judge. (4:23-cv-01215-DCN)

Argued: September 10, 2025

Decided: November 5, 2025

Appendix A

Before NIEMEYER, WYNN, and QUATTLEBAUM,

Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Quattlebaum joined. Judge Wynn

wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

To promote the release of prisoners who possess a

reduced risk of recidivism and thus reduce the federal

prison population, Congress enacted Title I of the

First Step Act of 2018 (“FSA”), which incentivizes

qualified federal prisoners to participate in and complete

“recidivism reduction programs or productive activities”

and thereby earn various benefits, including generous

jail-time credits. 18 U.S.C. § 3632. The FSA, however,

denies the particular benefit of jail-time credits to any

prisoner “serving a sentence for a conviction under” 68

specified laws, including 18 U.S.C. § 924(c), which punishes

“possession or use of a firearm during and in relation

to any crime of violence or drug trafficking crime.” Id.

§ 3632(d)(4)(D)(xxii); id. § 924(c).

Gregory Bonnie is serving a 144-month sentence in

a federal prison camp in South Carolina, 120 months of

which is attributable to convictions for drug trafficking

offenses, which are not disqualifying crimes for FSA

time credits, and 24 months of which is attributable to a

conviction under § 924(c), which is a disqualifying crime.

The Bureau of Prisons (“BOP”) denied Bonnie’s request

for FSA time credits as to his 120-month sentence,

Appendix A

treating his multiple prison terms “as a single, aggregate

term of imprisonment,” as required by 18 U.S.C. § 3584(c),

and finding him ineligible because that aggregate sentence

includes imprisonment for violating § 924(c).

In his petition for a writ of habeas corpus under 28

U.S.C. § 2241, Bonnie challenged the BOP’s decision,

arguing that he is eligible to earn FSA time credits during

his service of the 120-month component of his sentence

attributable to his convictions for drug trafficking, even

though he acknowledges that he cannot earn FSA time

credits during his service of the 24-month component

attributable to his § 924(c) conviction. The district court

denied his petition, concluding that Bonnie’s position is

not supported by the texts of the FSA and § 3584(c), and

Bonnie appealed.

Because Bonnie’s multiple-term sentence includes a

sentence for a disqualifying conviction and is, by reason

of § 3584(c), to be treated as a single aggregate sentence,

we conclude that Bonnie is ineligible for FSA time credits.

We therefore affirm.

A fter Bonnie pleaded g uilty in 20 05 to dr ug

trafficking, in violation of 21 U.S.C. §§ 841 and 846, and

possession of a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c), the

district court sentenced him on November 5, 2005, to 120

months’ imprisonment for his drug trafficking conviction

and a consecutive 60 months’ imprisonment for his § 924(c)

Appendix A

conviction, for a total of 180 months’ imprisonment. The

court also required him to serve eight years of supervised

release—an eight-year term for his drug trafficking

conviction and a concurrent five-year term for his § 924(c)

conviction.

Bonnie was released from prison in June 2017 and then

began serving his terms of supervised release.

While on supervised release, however, Bonnie again

engaged in drug trafficking, and he pleaded guilty to

two drug trafficking crimes, as well as to violating the

conditions of his supervised release. On May 27, 2021, the

district court sentenced him to 120 months’ imprisonment

for his new drug trafficking convictions, revoked his

November 5, 2005 terms of supervised release, and

sentenced him on the revocation to a consecutive term

of 24 months’ imprisonment, for a total of 144 months’

imprisonment. The court committed him to the custody

of the BOP, which assigned him to serve his sentence at

the Satellite Prison Camp at FCI Williamsburg in Salters,

South Carolina.

Several months later, while serving his sentence,

Bonnie requested that the BOP classify him as eligible to

receive FSA time credits with respect to the 120-month

portion of his sentence, at the same time recognizing

that the 24-month portion of his sentence for violating

supervised release on his 2005 convictions, including one

under § 924(c), made him ineligible for FSA time credits

when serving that sentence. The BOP denied Bonnie’s

request, noting that “[m]ultiple terms of imprisonment

Appendix A

ordered to run consecutively or concurrently shall be

treated for administrative purposes as a single, aggregate

term of imprisonment,” which, because he was sentenced

in connection with his violation of § 924(c), required that

Bonnie’s 144-month sentence be treated as ineligible

for FSA time credits. Bonnie thereafter exhausted his

administrative remedies.

Bonnie filed this petition for a writ of habeas corpus

under 28 U.S.C. § 2241 in the district court, and the

respondent Warden R.S. Dunbar filed a motion for

summary judgment, seeking dismissal of the petition. In

a thorough 25-page opinion, the district court granted

Warden Dunbar’s motion and denied Bonnie’s petition.

The court identified the relevant question as whether

the “24-month § 924(c) revocation sentence tainted the

separately imposed 120-month drug sentence such that

Mr. Bonnie is ineligible to earn FSA time credits for the

entire 144-month sentence.” After conducting an analysis

of 18 U.S.C. §§ 3623(d)(4)(D) and 3584(c), the district court

concluded:

In sum, the court finds that the plain text

and statutory context of the FSA indicate

Congress’s intention that an inmate convicted

of multiple offenses, at least one of which is

ineligible to earn time credits under the FSA,

is ineligible to earn time credits under the FSA

because the BOP is statutorily mandated to

aggregate the sentence.

The court added, “Bonnie has offered no statute or

caselaw to support a contrary interpretation,” and it

Appendix A

cited numerous decisions nationwide that have uniformly

rejected Bonnie’s interpretation.

From the district court’s judgment dated May 10,

2024, Bonnie filed this appeal.

Bonnie contends that, while he is concededly ineligible

for FSA time credits when serving his 24-month revocation

sentence for violating § 924(c), he is nonetheless eligible

for the credits when serving his consecutive 120-month

sentence for drug trafficking. As he argues:

While Mr. Bonnie “is serving” the § 924(c)

revocation sentence, he is ineligible to earn

time credits under the plain language of the

FSA. But after completion of that sentence, he

will no longer be “serving a sentence” for an

ineligible conviction.

He asserts that the statutory text is clear, directing the

“BOP to calculate credits on any permitted sentence, and

consecutive sentences are different sentences.” (Emphasis

added). Thus, he argues that § 3632(d)(4)(D) disqualifies

“a sentence” and that the components of a multiple-term

sentence are to be treated distinctly, each as “a sentence.”

He therefore concludes that the district court erred in

disqualifying him from FSA time credits during his entire

144-month sentence. To make that argument, he relies

mainly on the portion of the FSA’s text referring to a

single disqualifying sentence—“if a prisoner is serving

Appendix A

a sentence for a conviction,” 18 U.S.C. § 3632(d)(4)(D)

(emphasis added)—which, he argues, requires that each

sentence be assessed and applied separately.

Bonnie’s argument presents a question of statutory

interpretation, which we review de novo. See Rosemond

v. Hudgins, 92 F.4th 518, 523 (4th Cir. 2024); United

States v. Thomas, 32 F.4th 420, 423 (4th Cir. 2022). And

in construing a statute, we read it in the context of its

overall statutory scheme. See West Virginia v. EPA, 597

U.S. 697, 721, 142 S.Ct. 2587, 213 L.Ed.2d 896 (2022). Thus,

our focus is “to construe statutes, not isolated provisions.”

King v. Burwell, 576 U.S. 473, 486, 135 S.Ct. 2480, 192

L.Ed.2d 483 (2015) (cleaned up). With these principles in

hand, we turn to the FSA.

Title I of the First Step Act of 2018, entitled “Recidivism

Reduction,” requires the Attorney General to develop a

“risk and needs assessment system” to be used by the BOP

(1) to determine each federal prisoner’s “recidivism risk”

and “risk of violent or serious misconduct”; (2) to assign

the prisoner to “appropriate evidence-based recidivism

reduction programs or productive activities”; and (3) to

assess “when a prisoner is ready to transfer into prerelease

custody or supervised release.” 18 U.S.C. § 3632(a). And

as an incentive to induce prisoners to participate in and

complete the programs, the FSA authorizes the BOP to

grant numerous benefits, including, among others, phone

privileges, additional visitation time, and, as relevant here,

“time credits” to reduce prison time. Id. § 3632(d). The

FSA time credits, which are awarded in addition to good

time credits earned pursuant to § 3624, are generous,

Appendix A

giving prisoners “10 days of time credits for every 30

days of successful participation” in the programs and

an “additional 5 days of time credits for every 30 days of

successful participation” for prisoners assessed to be “at a

minimum or low risk for recidivating.” Id. § 3632(d)(4)(A).

The FSA is thus designed to identify prisoners with

a lower risk of recidivating and to reward them with

time credits for completing programming, and also

to identify prisoners with a higher risk, who are not

similarly rewarded. In line with these purposes, the FSA

categorically disqualifies any prisoner from receiving

time credits if the prisoner is serving a sentence for a

conviction on any of 68 disqualifying crimes, including,

as relevant to this appeal, a § 924(c) conviction. 18

U.S.C. § 3632(d)(4)(D)(xxii). Specifically, § 3632(d)(4)(D)

provides: “A prisoner is ineligible to receive time credits

. . . if the prisoner is serving a sentence for a conviction

under . . . § 924(c).” Id. (emphasis added).

Bonnie parses the language of § 3632(d)(4)(D) to argue

that his disqualification is limited to the time he is serving

his disqualifying sentence and that he should receive FSA

time credits when serving time for his non-disqualifying

sentence. He reasons that the disqualifying language is

linked to “a sentence” for a particular disqualifying crime,

allowing him to earn credits for service of “a sentence”

on any non-disqualifying crimes. He reasons further that

the “a sentence” language limits the disqualification to

the time while he is serving the disqualifying sentence.

As he summarizes, “The FSA’s text is clear. It directs

BOP to calculate credits on any permitted sentence, and

Appendix A

consecutive sentences are different sentences.” Thus, he

claims that while he “is serving” the § 924(c) revocation

sentence, he is ineligible to earn time credits under the

plain language of the FSA. But after the completion of that

sentence, he will no longer be “serving a sentence for an

ineligible conviction.” (Internal quotation marks omitted).

At the outset, we note that the provision categorically

disqualifies a prisoner, not a sentence, from receiving FSA

time credits, defining such prisoner as one who is serving a

sentence for a disqualifying crime. The text provides that

the “prisoner is ineligible to receive time credits under

this paragraph if the prisoner is serving a sentence for

a conviction under [§ 924(c)].” 18 U.S.C. § 3632(d)(4)(D).

Thus, when the only sentence that a prisoner is serving is

for conviction of a disqualifying crime, he is categorically

ineligible to receive FSA time credits because Congress

has determined that the conduct underlying the crime

predicts a high risk of recidivism.

Bonnie does not disagree with this understanding.

Rather, he focuses on when a prisoner is ser ving

multiple terms of imprisonment, whether consecutive

or concurrent, and argues that each sentence must be

treated separately. He thus reasons that he can receive

FSA time credits when he is serving the sentence for the

drug trafficking crime, even as he agrees that he cannot

receive such credits when serving the sentence for the

§ 924(c) conviction. This argument, however, overlooks 18

U.S.C. § 3584(c), which precludes treating multiple-term

sentences separately for administrative purposes. That

10a

Appendix A

statute, enacted as part of the Sentencing Reform Act of

1984, provides:

Multiple terms of imprisonment ordered to

run consecutively or concurrently shall be

treated for administrative purposes as a single,

aggregate term of imprisonment.

18 U.S.C. § 3584(c) (emphasis added). Both the BOP and

the district court relied on the mandate in that provision

to reject Bonnie’s argument that his sentences should

be assessed individually. They concluded that because

§ 3584(c) requires that the BOP treat Bonnie’s multiple

sentences as components of a single aggregate sentence,

his 144-month sentence, which, in part, is for a conviction

under § 924(c), disqualified Bonnie. We agree, as the

language of § 3584(c) is clear.

Bonnie does not arg ue other w ise. Rather, he

argues that § 3584(c) does not apply at all because it

is only applicable for “administrative purposes,” and,

as he argues, the BOP is not acting for administrative

purposes in awarding FSA time credits. He maintains

that discretion is necessary for “administrative purposes”

and explains that the award of credits does not include

a “broad delegation to the BOP to manage prisoners’

sentences” so as to give it discretion. In this regard, he

points to the FSA’s mandatory language that the Attorney

General must create the system for assessing prisoners,

that the BOP must assign prisoners to programs, and

that the BOP must grant FSA time credits for prisoners

participating in and completing the programs.

11a

Appendix A

This, however, reads “administrative purposes” far

too narrowly. “Administration” does not define only acts

of discretion. Rather, it can cover any acts that execute

Congress’s will. After a court imposes a sentence, it must

commit the defendant “to the custody of the Bureau of

Prisons until the expiration of the term imposed.” 18

U.S.C. § 3621(a). And the BOP is then charged with

selecting the place to incarcerate the defendant and

carrying out the incarceration and supervising it, which

includes detaining him, providing treatments for various

conditions, providing programs, giving access to medical

care as needed, and, of course, implementing the risk

and needs assessment system. See id. § 3621(b), (e), (f),

(h), (i). While all these requirements for implementing

the sentence and supervising custody of the prisoner are

mandatory, they also involve judgment and decisionmaking

to give effect to the court’s sentence. But, regardless of

the level of discretion involved, all are administrative

functions. Indeed, what the BOP does goes to the very

heart of what is administrative—“to manage or supervise

the execution, use, or conduct of” something, here, a

sentence. “Administrate, administer,” Merriam-Webster’s

Collegiate Dictionary 16 (11th ed. 2020); see also United

States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117

L.Ed.2d 593 (1992) (noting that the BOP is tasked with

“the responsibility for administering the sentence[s]”

of federal offenders (emphasis added)). And indeed, the

Wilson Court held that the BOP determines good time

credits as an administrative matter:

Because the offender has a right to certain jailtime credit . . . and because the district court

12a

Appendix A

cannot determine the amount of the credit at

sentencing, the [BOP] has no choice but to make

the determination as an administrative matter

when imprisoning the defendant.

Id. (emphasis added); see also United States v. LaBonte,

520 U.S. 751, 758 n.4, 117 S.Ct. 1673, 137 L.Ed.2d 1001

(1997). Finally, we note that § 3632, which includes the

BOP’s management of the FSA time credits, is contained

in Title 18, Chapter 229 of the United States Code, which

is denominated “Postsentence Administration.” See INS

v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183,

189, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991) (recognizing

that “the title of a statute or section can aid in” textual

interpretation); Project Vote/Voting for Am., Inc. v. Long,

682 F.3d 331, 337 (4th Cir. 2012) (same).

We have no difficulty in concluding that the BOP’s

implementation of the FSA time credits system is

“administrative,” as used in § 3584(c), and therefore that

that provision applies to Title I of the FSA.

Bonnie also argues that § 3584(c) should not apply

to FSA time credits because Congress did not explicitly

quote the § 3584(c) language in the FSA while it did so

in the Second Chance Act of 2007, which authorizes a

home detention pilot program. He reasons that because

Congress chose to include such language in the Second

Chance Act, its omission from the FSA indicates

Congress’s intent that § 3584(c) not apply to the FSA.

Thus, under Bonnie’s reading, § 3584(c) should be ignored

13a

Appendix A

unless it is explicitly quoted in a statute to which it would

otherwise apply, rendering § 3584(c) useless.

More indicative, however, is that a comparison of

the FSA’s recidivism reduction programs to the Second

Chance Act of 2007’s home detention pilot program is

quite inapt. The Second Chance Act does not include a

jail-time credit program based on a prisoner’s conduct,

as does the FSA. Indeed, sentences are not assessed and

reduced with time credits under the Second Chance Act,

and the purpose and implementation of the home detention

program are not the same. Rather, it is a compassionate

response program in which elderly or terminally ill

prisoners may be transferred to home confinement to

complete their sentences. See 34 U.S.C. § 60541(g).

Moreover, the original text of the Second Chance Act

was drafted at a different time—in 2007—by a different

Congress with different considerations in mind. And

its disqualifying language is of a different style. For

instance, the Second Chance Act applies to “an offender

. . . who is serving a term of imprisonment that is not

life imprisonment based on conviction for an offense or

offenses that do not include any crime of violence . . . , sex

offense . . . , or [other designated offenses].” 34 U.S.C.

§ 60541(g)(5)(A)(ii) (emphasis added). On the other hand,

the FSA, which was drafted in 2018, provides that a

“prisoner,” not an “offender,” is “ineligible if the prisoner

is serving a sentence for a conviction under any of the

following provisions of law,” not for “offense or offenses.”

18 U.S.C. § 3632(d)(4)(D) (emphasis added). And while the

Second Chance Act explicitly provides that multiple terms

14a

Appendix A

of imprisonment are to be treated as a single aggregate

term, quoting the exact language of § 3584(c), see 34

U.S.C. § 60541(g)(5)(C), it does so in light of the fact that

§ 3584(c), as a regulation relating to sentences, might not

otherwise be applicable because the Second Chance Act

does not assess or change sentences. Rather, it leaves the

offender’s sentence in place and only authorizes a different

location to serve it. The FSA, on the other hand, does

change sentences, and therefore § 3584(c)’s regulation of

sentences for administrative purposes would clearly apply.

Finally, even were we to take both the Second Chance

Act and the FSA to be comparable, the fact that Congress

chose in 2007 to quote § 3584(c) within the provisions of

the Second Chance Act and did not do so in 2018 in the

FSA cannot fairly lead to the conclusion that Congress

therefore intended that § 3584(c) not apply to the FSA,

when its terms are clearly applicable.

Making a similar argument, Bonnie contends that the

BOP’s treatment of sentences under a 1976 bilateral treaty

with Mexico “is instructive.” The Treaty on the Execution

of Penal Sentences provides for the transfer of Mexican

nationals serving certain sentences in the United States

to serve out their sentences in Mexico, and vice versa.

See U.S.-Mex., Nov. 25, 1976, 28 U.S.T. 7399, art. I. The

Treaty, however, does not apply to any “offense under

the immigration or the purely military laws of a party.”

Id. art. II(4). In implementing the Treaty when multiple

offenses are involved, the BOP lets a Mexican national

serve the sentence for an immigration violation in the

United States and then transfers the Mexican national to

15a

Appendix A

Mexico to fulfill the remainder of his sentences. See BOP

Program Statement 5140.42 (April 10, 2015). This practice

simply implements the terms of the Treaty, however, and

is hardly relevant to a program for awarding good time

or FSA time credits, where the BOP is administering the

sentence and to which § 3584(c)’s aggregation provision is

clearly applicable. Moreover, apart from the disqualified

offenses, the BOP does indeed aggregate sentences in

implementing the Treaty, as required by the implementing

statute. See 18 U.S.C. § 4105(c)(4). That hardly helps

Bonnie’s argument that the BOP should not treat multiple

sentences as a single aggregate sentence under § 3584(c).

In short, we conclude that § 3584(c) applies when

construing § 3632 and thus directs the BOP to treat

multiple sentences as a single aggregate sentence for

administrative purposes, including the computation of

FSA time credits. Bonnie is thus “serving a sentence” in

connection with his § 924(c) conviction, defined by § 3584(c)

to be his aggregate 144-month sentence. As such, he is

ineligible for FSA time credits under § 3632(d)(4)(D).

Our interpretation of § 3632(d)(4)(D) also conforms,

we believe, to the overall purpose of Title I of the FSA,

which is designed to identify certain prisoners for early

release—prisoners whom Congress has determined to be

at low risk for recidivism and violence—and to provide

them benefits, while detaining high-risk prisoners based

on their elevated threat to recidivate. In distinguishing

prisoners who are serving sentences for convictions of

crimes predicting a high risk of recidivism from prisoners

who are serving sentences for convictions of crimes not

16a

Appendix A

predicting a high risk of recidivism, the statute lists 68

crimes, any one of which, Congress has found, disqualifies

the prisoner. Because recidivism is predicted by the

nature of the crime, the conduct inherent in the crime is

critical to the FSA’s operation. Thus, in a case where the

defendant has been convicted of a multi-term sentence,

if the defendant is incarcerated for conduct disqualifying

him for FSA credits, whether supporting his entire

sentence or only a part, that conduct predicts, as Congress

has determined, that he has a high risk of recidivism and

therefore is disqualified from receiving FSA time credits.

And that high risk is not eliminated by the fact that the

prisoner also committed a nondisqualifying crime. In

short, the fact that the prisoner committed a disqualifying

crime predicts a high risk of recidivism, which is the whole

underlying basis for the FSA’s denial of FSA time credits.

Bonnie nonetheless urges us to apply the rule of lenity

against BOP’s aggregation of his sentences. But that rule

does not fit here. It only applies when courts “can make

no more than a guess as to what Congress intended”

and there is a “grievous ambiguity or uncertainty in the

statute.” Muscarello v. United States, 524 U.S. 125, 13839, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (cleaned up).

And we conclude that there is no such degree of doubt.

Section 3632(d)(4)(D) disqualifies any prisoner who is

serving a sentence for a conviction under § 924(c), and for

determining whether Bonnie’s multiple-term sentence is

such a disqualifying sentence, § 3584(c) directs the BOP to

treat such a multiple-term sentence “as a single, aggregate

term of imprisonment.” And we also conclude that there is

17a

Appendix A

no grievous ambiguity or uncertainty that would render

the rule of lenity applicable.

Finally, we note that every court that has considered

the issue has reached the conclusion that we reach here

today. See Giovinco v. Pullen, 118 F.4th 527, 529 (2d Cir.

2024) (holding that inmate serving concurrent sentences

for eligible and ineligible offenses was ineligible for FSA

time credits); Teed v. Warden Allenwood FCI Low, No.

23-1181, 2023 WL 4556726, at *2 (3d Cir. July 17, 2023) (per

curiam) (holding that BOP properly aggregated multiple

sentences for the administrative purpose of determining

an inmate’s FSA eligibility and term of imprisonment);

Martinez v. Rosalez, No. 23-50406, 2024 WL 140438,

at *4 (5th Cir. Jan. 12, 2024) (per curiam) (holding that

inmate transferred under bilateral treaty with Mexico

was ineligible for FSA credit, where one of his multiple

sentences was ineligible under the FSA); Keeling v.

Lemaster, No. 22-6126, 2023 WL 9061914, at *1 (6th Cir.

Nov. 22, 2023) (holding that prisoner’s § 924(c) conviction

rendered him ineligible for his aggregate sentence); Sok

v. Eischen, No. 23-1025, 2023 WL 5282709, at *1 (8th Cir.

Aug. 17, 2023) (per curiam) (holding that BOP properly

aggregated multiple sentences under § 3584(c) for the

purpose of calculating FSA time credits). Were we to

accept Bonnie’s interpretation, we would thus create an

unfortunate circuit split.

***

18a

Appendix A

Because Bonnie is serving a revocation sentence for a

conviction under 18 U.S.C. § 924(c) as a component of his

single, aggregate 144-month sentence, he is ineligible for

FSA time credits under 18 U.S.C. § 3632(d)(4)(D)(xxii).

We therefore affirm the district court’s judgment denying

Bonnie’s petition for a writ of habeas corpus.

AFFIRMED

19a

Appendix A

WYNN, Circuit Judge, dissenting:

Can a prisoner “serve” a 24-month sentence for 144

months? Of course not. The proposition refutes itself.

That obvious “no” answer should resolve this case. Yet

to the extent inventive judicial minds might conjure

some uncertainty, Congress wisely anticipated that farfetched possibility. The text and purpose of the First

Step Act—to enact criminal justice reform, particularly

by incentivizing prisoners to participate in recidivism

reduction programs—makes clear that Gregory Bonnie

is entitled to accrue First Step Act time credits for the

eligible portion of his sentence.

In 2004, Bonnie pleaded guilty to a drug-distributionconspiracy offense under 21 U.S.C. § 841 and a related

firearms-possession offense under 18 U.S.C. § 924(c).

In 2005, he received a 120-month sentence on the drug

conviction and a consecutive 60-month sentence on the

firearms conviction, along with a total eight-year term of

supervised release. He earned good-time credits while

serving his sentences, which allowed him to be released

on supervision in June 2017.

In January 2019, Bonnie was again indicted on drugrelated charges. He pleaded guilty to two of the charges

and, in April 2021, was sentenced to the mandatory

minimum of 120 months on both, with the sentences to run

concurrently. That same month, the district court revoked

Bonnie’s supervised release for his 2005 convictions

20a

Appendix A

in light of the new criminal charges and imposed two

revocation sentences of 24 months each, to be served

concurrently with each other but consecutively to the

2021 drug sentences. He is currently in prison serving

these 2021 sentences. With good-time credits, Bonnie’s

anticipated release date falls in January 2029.

The question posed by this case is whether Bonnie is

eligible to potentially be released even sooner by taking

advantage of an additional category of “time credits”

available under the First Step Act of 2018.1 The district

court concluded that he is not. Our review is de novo.

Valladares v. Ray, 130 F.4th 74, 80 (4th Cir. 2025).

II.

“ The First Step Act established a system of

mandatory time credits for incarcerated individuals

who participate in recidivism reduction programming,

with limited exceptions.” Id. at 77. These “time credits

can be applied toward earlier placement in pre-release

custody or supervised release.” Id. at 79 (citing 18 U.S.C.

§ 3632(d)(4)(C)). Specifically, the First Step Act states

that “[a] prisoner, except for an ineligible prisoner under

[§ 3632(d)(4)(D)], who successfully completes evidencebased recidivism reduction programming or productive

1. It is undisputed that a prisoner can earn both First Step

Act time credits and good-time credits. See 18 U.S.C. § 3632(d)(6)

(“The incentives described in this subsection [including First

Step Act time credits] shall be in addition to any other rewards

or incentives for which a prisoner may be eligible.”); id. § 3624(b)

(describing good-time credits).

21a

Appendix A

activities, shall earn time credits” as prescribed in the

statute. 18 U.S.C. § 3632(d)(4)(A). Section § 3632(d)(4)(D)

clarifies that “[a] prisoner is ineligible to receive time

credits . . . if the prisoner is serving a sentence for a

conviction under any of the following provisions of law,”

including, as relevant here, § 924(c). Id. § 3632(d)(4)(D),

(d)(4)(D)(xxii).

It is undisputed in this case that Bonnie’s 24-month

revocation sentence is ineligible under § 3632(d)(4)(D)

because the underlying 2005 case included a § 924(c)

conviction. It is also undisputed that his 120-month 2021

drug sentence would not, on its own, be ineligible. The

question is whether one ineligible conviction “taints”

the total effective sentence, such that Bonnie cannot

earn First Step Act time credits during any of the 144

months he is currently serving. The district court joined

a significant number of other courts in concluding that it

does. 2

2. E.g., Giovinco v. Pullen, 118 F.4th 527, 529 (2d Cir. 2024),

cert. denied, ___ U.S. ___, 145 S. Ct. 1947, 221 L.Ed.2d 678 (2025);

Colotti v. Peters, No. 25-1191, 2025 WL 1321386, at *2 (3d Cir.

May 7, 2025) (per curiam); McNeill v. Ramos, No. 23-6488, 2023

WL 6442551, at *1 (4th Cir. Oct. 3, 2023) (per curiam); Martinez

v. Rosalez, No. 23-50406, 2024 WL 140438, at *3 (5th Cir. Jan. 12,

2024); Oiler v. LeMaster, No. 24-5033, 2025 WL 1864875, at *1

(6th Cir. Jan. 10, 2025) (per curiam); Sok v. Eischen, No. 23-1025,

2023 WL 5282709, at *1 (8th Cir. Aug. 17, 2023) (per curiam). But

cf. Hill v. King, No. 23-CV-1365, 2024 WL 5690795, at *1 (D. Minn.

Oct. 7, 2024) (accepting the petitioner’s argument), report and

recommendation rejected, No. 23-CV-1365, 2025 WL 1020604,

at *4, *6 (D. Minn. Apr. 7, 2025) (stating that if the court “were

writing on a truly blank slate, it would likely accept the [magistrate

22a

Appendix A

With great respect for my colleagues on this panel

and elsewhere on the bench, I cannot agree. In my view,

the text of the statute favors Bonnie’s interpretation. So

I would reverse and remand with instructions to grant

Bonnie’s habeas petition and order the Warden to allow

Bonnie to earn First Step Act time credits while he is

serving the eligible 120-month portion of his total effective

sentence.

“When conducting statutory analysis, we must

first determine whether the meaning of the statute is

ascertainable through the text alone. The plainness

or ambiguity of statutory language is determined by

reference to the language itself, the specific context in

which that language is used, and the broader context of

the statute as a whole. Employing various grammatical

and structural canons of statutory interpretation helps

guide our reading of the text. Our inquiry must cease if

the statutory language is unambiguous and the statutory

scheme is coherent and consistent.” Valladares, 130 F.4th

at 80-81 (citations and internal quotation marks omitted).

As noted, the First Step Act provides that “[a] prisoner,

except for an ineligible prisoner under [§ 3632(d)(4)(D)],

who successfully completes evidence-based recidivism

judge]’s recommended disposition and grant [the] petition,” but

that it felt constrained by circuit precedent and “the weight of

the case law” to conclude otherwise); Grigsby v. Gutierrez, No.

22-16180, 2023 WL 8711819, at *1 & n.2 (9th Cir. Dec. 18, 2023)

(per curiam) (declining to resolve the question).

23a

Appendix A

reduction programming or productive activities, shall

earn time credits.” 18 U.S.C. § 3632(d)(4)(A). But, per

§ 3632(d)(4)(D), “[a] prisoner is ineligible to receive [such]

time credits . . . if the prisoner is serving a sentence for

a conviction under any of the [enumerated] provisions of

law.”

My col le a g ue s m a ke much of t he fa c t t h at

§ 3632(d)(4)(D) speaks of “ineligible prisoners,” asserting

that “the provision categorically disqualifies a prisoner,

not a sentence.” Maj. Op. at 9. For support, they explain

that “[t]he text provides that the ‘prisoner is ineligible to

receive time credits under this paragraph if the prisoner

is serving a sentence for a conviction under [§ 924(c)].’”

Maj. Op. at 9 (citing 18 U.S.C. § 3632(d)(4)(D)). Of course,

the emphasis in that quotation of the statutory language

is the majority’s, not the statute’s. Indeed, the definition

of an ineligible prisoner focuses on whether he “is serving

a sentence for a[n ineligible] conviction,” pointing us right

back to the question of what sentence is being served. 18

U.S.C. § 3632(d)(4)(D). Simply declaring that the statute

“categorically disqualifies a prisoner” does not make it

so. Maj. Op. at 9.

And if, under the majority’s view, a prisoner as an

individual is categorically disqualified from earning time

credits, does that categorical disqualification persist in

perpetuity? Surely a prisoner who serves a sentence for a

disqualifying crime is not disqualified from earning First

Step Act credits for any future criminal sentences for the

rest of his life; rather, he is disqualified if he “is serving”

that sentence.

24a

Appendix A

Before the Second Circuit, the Bureau of Prisons

(“BOP”) “acknowledge[d] that the most natural reading

of § 3632(d)(4)(D), standing alone, might render ineligible

only the individual sentence applicable to the ineligible

offense.” Giovinco v. Pullen, 118 F.4th 527, 530 (2d

Cir. 2024), cert. denied, ___ U.S. ___, 145 S. Ct. 1947,

221 L.Ed.2d 678 (2025). I agree: to state the obvious, a

prisoner is only “serving” a sentence for as long as the

sentence may be served. Bonnie, therefore, will only

“serve” his revocation sentence for 24 months; for the other

120 months of his total effective sentence, he will not be

“serving a sentence for a conviction under” an ineligible

statute.

The Warden argues, however, that the First Step Act

was enacted against the background of another statute,

18 U.S.C. § 3584, which was enacted in 1984. Specifically,

§ 3584(c) states that “[m]ultiple terms of imprisonment

ordered to run consecutively or concurrently shall be

treated for administrative purposes as a single, aggregate

term of imprisonment.” So, the Warden reasons, the BOP

must treat Bonnie’s consecutive sentences “as a single,

aggregate term of imprisonment”—and thus Bonnie is

“serving a sentence” for an ineligible conviction under

the First Step Act for the entire 144 months. Courts have

generally adopted this view in rejecting similar challenges

brought by other prisoners.

That position, however, runs headlong into basic

logic. A prisoner who receives both a 24-month sentence

and a 120-month sentence (whether consecutively or

concurrently) is not serving the 24-month sentence for

25a

Appendix A

the entirety of the period of imprisonment, 3 regardless

of whether the sentences are “aggregate[d]” “for

administrative purposes.” 18 U.S.C. § 3584(c). This is most

apparent with a consecutive sentence like Bonnie’s: even if

the 24-month sentence is broken up into pieces throughout

the aggregate 144-month sentence, at any given moment,

Bonnie can legally only be serving one or the other.

But this logic holds true for a concurrent sentence, too,

because—to state the obvious—24 is less than 120. So,

again, even if the 24 months are spread throughout the

120-month aggregate sentence, at any given moment of the

concurrent sentences, the prisoner is either serving both

sentences (which he could only do for 24 months total) or

only the remaining 96 months of the longer sentence. How

a sentence is treated for administrative purposes might

alter when a prisoner is serving one portion of his sentence

or another, but it does not change the fundamental fact

that, on each specific day, he is either serving a particular

3. To be sure, the Dictionary Act provides that, “[i]n

determining the meaning of any Act of Congress, unless the

context indicates otherwise[,] . . . words used in the present

tense include the future as well as the present.” 1 U.S.C. § 1. So,

although § 3632(d)(4)(D) refers to a prisoner who “is serving a

sentence for” an ineligible conviction—using a form of the present

tense—that reference might be read to include a prisoner who

will serve a sentence for an ineligible conviction, such that if he

has even one day left of the ineligible sentence, he is ineligible.

I am persuaded, however, that this is a situation where “context

indicates otherwise.” For one thing, the statute does not use the

simple present tense, but instead uses the present progressive

tense, indicating an action that is occurring now. And I think

context otherwise supports that reading for all the reasons

explained in this dissent.

26a

Appendix A

sentence, or he is not. Put simply, it is impossible to “serve”

a 24-month sentence for 144 months.

The majority rejects Bonnie’s argument that § 3584(c)

applies only for “administrative purposes” and that

awarding FSA time credits does not fall within that

category. Maj. Op. at 10. It explains that the BOP is tasked

with “selecting the place to incarcerate the defendant

and carrying out the incarceration and supervising it,”

tasks which are comprised of “administrative functions.”

Maj. Op. at 10-11. But even if we accept that premise for

the moment, why should that mean that the eligibility

provision in § 3632—enacted years later, in the context of

a major recidivism-reduction effort by Congress—could

not specify that sentences should be viewed differently

to effectuate the goals of that program? Particularly

when that result seems the most natural from the text

of the statute, I am not convinced that we should reject

that straightforward reading in favor of applying a more

general preexisting provision. Cf. D.B. v. Cardall, 826

F.3d 721, 735-36 (4th Cir. 2016) (explaining the canon of

statutory construction providing that the specific terms of

a statute defeat the general, absent indications of contrary

legislative intent).

Further, the Warden has not disputed Bonnie’s

assertion—supported by a citation to a BOP record—that

BOP has the ability to “parse” prisoners’ sentences, and

related “period[s] of ineligibility and eligibility,” “down to

the day.” J.A. 144; see J.A. 145. And notably, First Step

Act time credits are earned based on days of participation

in applicable programming. See 18 U.S.C. § 3632(d)(4)(A)

27a

Appendix A

(providing that “[a] prisoner shall earn 10 days of time

credits for every 30 days of successful participation in

evidence-based recidivism reduction programming or

productive activities,” and that certain low-risk offenders

“shall earn an additional 5 days of time credits for every

30 days of successful participation” in such programming);

Gonzalez v. Herrera, 151 F.4th 1076, 1082 (9th Cir.

2025) (“[E]arned time credits are an amount placed at a

prisoner’s disposal—a store of value (measured in days)

that incarcerated individuals receive as a return for their

participation in qualified programs.”). There is thus no

apparent reason why BOP could not designate periods as

eligible or ineligible for purposes of First Step Act time

credits, and then apply days of successful participation in

relevant programming toward the 30-day requirement

during eligible periods.

In addition to the basic logic of what it means to serve

a sentence, the statutory structure and the use of different

language in another section of the First Step Act persuade

me that Bonnie has the stronger textual argument.

The structure of the statute supports reading it to

favor greater eligibility. “The First Step Act of 2018

may be the most significant criminal justice reform bill

in a generation.” Pulsifer v. United States, 601 U.S. 124,

155, 144 S.Ct. 718, 218 L.Ed.2d 77 (2024) (Gorsuch, J.,

dissenting) (cleaned up) (quoting Brief for Sen. Richard

J. Durbin et al. as Amici Curiae at 9, Terry v. United

States, 593 U.S. 486, 141 S.Ct. 1858, 210 L.Ed.2d 108

28a

Appendix A

(2021)); accord Gonzalez, 151 F.4th at 1078 (describing

the First Step Act as a “transformative law with farreaching implications that have yet to all be realized”).

As relevant to this case, the First Step Act created “a

system to incentivize incarcerated individuals to complete

programs intended to reduce their risk of recidivism,”

with a variety of incentives, including “the big one—time

credits.” Gonzalez, 151 F.4th at 1078-79.

Specifically, Title I of the First Step Act, which

includes § 3632, is labeled “Recidivism Reduction.” First

Step Act of 2018, Pub. L. No. 115-391, § 101, 132 Stat.

5194, 5195. Section 3632 itself is labeled “[d]evelopment

of risk and needs assessment system” and requires the

development of such a system to, among other things,

“determine the recidivism risk of each prisoner.” 18 U.S.C.

§ 3632(a)(1). It also mandates that this system “provide

incentives and rewards for prisoners to participate in and

complete evidence-based recidivism reduction programs,”

including the time credits at issue here. Id. § 3632(d).

Given the goal of reducing recidivism and incentivizing

participation in recidivism reduction programs, the

structure of the statute supports reading it to favor

greater eligibility. See Gonzalez, 151 F.4th at 1088 (noting

that, in light of the time-credits provision’s purpose, “time

credits should maintain utility as an incentive for prisoners

to continue programming, thereby reducing recidivism

and the cost of managing the nation’s incarcerated and

supervised population,” but that the BOP’s “interpretation

allows for earned time credits to lose their worth as an

incentive”).

29a

Appendix A

We held as much in our recent decision in Valladares

v. Ray. Rejecting an overly stringent BOP interpretation

of the time-credits provision, we explained that “Congress

passed the First Step Act to reform our criminal legal

system and expand opportunities for those who are

incarcerated. But instead of granting [the petitioner] the

opportunities for which he was eligible, BOP adopted an

untenable interpretation of the statute to bar [him], and

others similarly situated, from earning time credits for

participation in recidivism reduction programming. In

contravention of Congress’ command, BOP’s interpretation

strips defendants of the incentive to participate in these

programs to better themselves and attain the skills they

need to be productive members of society. That contradicts

the text of the First Step Act.” Valladares, 130 F.4th at 85;

see also Gonzalez, 151 F.4th at 1078 (rejecting yet another

harsh BOP interpretation of the time-credits provision).

The same is true here: the full context of the First

Step Act emphasizes leniency, and the structure of

the particular section at issue emphasizes reducing

recidivism. The Warden’s stingy interpretation of the

time-credits provision undermines both statutory goals.

“ T he i nt er pretive canon that Cong ress acts

intentionally when it omits language included elsewhere”

also strongly supports Bonnie’s interpretation in this case.

Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 392,

135 S.Ct. 913, 190 L.Ed.2d 771 (2015). The First Step Act

modified a preexisting home-detention program to include

“eligible terminally ill offenders,” which it defined in 34

U.S.C. § 60541(g)(5)(D) as “an offender in the custody of

30a

Appendix A

the [BOP] who . . . is serving a term of imprisonment based

on conviction for an offense or offenses that do not include”

certain enumerated crimes. First Step Act, § 603, 132

Stat. at 5238-39 (codified at 34 U.S.C. § 60541(g)(1)(A),

(5)(D)) (emphasis added). This definition explicitly removes

from eligibility someone with multiple offenses if even one

of them is disqualifying. Thus, the same Congress that

enacted the First Step Act time-credits program knew

how to limit eligibility in a program if a prisoner had any

disqualifying convictions—but chose not to use the same

language in § 3632(d)(4)(D).4 Because “Congress knows

how to write a law” limiting eligibility if a prisoner has

any disqualifying convictions—after all, “it did so with

[§ 60541(g)(5)(D)]”—“Congress’s choice of words” in

§ 3632(d)(4)(D) “necessarily indicates that earned time

credits” are to be understood differently. Gonzalez, 151

F.4th at 1084 (applying this rule in a different context);

accord Valladares, 130 F.4th at 83 (“Where ‘Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.’” (quoting Barnhart

v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151

L.Ed.2d 908 (2002)).

And it bears noting that, although the majority opinion

correctly states that the Second Chance Act was enacted

in 2007, Maj. Op. at 12, including the eligibility provision

for elderly offenders, the eligibility provision disqualifying

4. Notably, this highly compelling difference in language does

not appear to have been discussed in any other case considering

the question before us, limiting those cases’ persuasive force.

31a

Appendix A

certain terminally ill offenders from taking advantage

of the home-detention program was added through the

First Step Act of 2018—that is, the same law that created

the recidivism reduction program at issue here. So the

same Congress that excluded from the home-detention

program a terminally ill offender who “is serving a term

of imprisonment based on conviction for an offense or

offenses that do not include” certain enumerated crimes,

34 U.S.C. § 60541(g)(5)(D) (emphasis added), chose to

exclude from the recidivism-reduction credits program

a prisoner who “is serving a sentence for a conviction

under” enumerated laws, 18 U.S.C. § 3632(d)(4)(D)

(emphasis added).

Moreover, the First Step Act’s divergent definitions

in § 60541(g)(5)(D) and § 3632(d)(4)(D) were enacted

against the backdrop of a preexisting definition in

§ 60541(g)(5)(C). That provision explicitly defines “term

of imprisonment” as used in that section using the same

definition as § 3584(c), stating that it “includes multiple

terms of imprisonment ordered to run consecutively or

concurrently, which shall be treated as a single, aggregate

term of imprisonment for purposes of [§ 60541].” 34

U.S.C. § 60541(g)(5)(C). If, as the Warden argued below,

“[t]here was no reason for Congress to say anything within

[§ 3632(d)(4)(D)] about how consecutive sentences were to

be regarded by the BOP, because Congress had already

said everything it needed to say within § 3584(c),” then

the same would presumably be true for § 60541(g)(5)(C),

and the definition provided in that statute was superfluous.

J.A. 258 (quoting Walton v. Fikes, No. 22-CV-1998 (JWB/

TNL), 2023 WL 6283298, at *2 (D. Minn. Aug. 10, 2023),

32a

Appendix A

report and recommendation adopted, No. CV 22-1998

(JWB/TNL), 2023 WL 6282897 (D. Minn. Sept. 26,

2023)). Because “a competing interpretation would avoid

superfluity,” “[t]he canon against surplusage” may “be

meaningful” here. Bufkin v. Collins, 604 U.S. 369, 387,

145 S.Ct. 728, 221 L.Ed.2d 192 (2025).

My col leag ues u rge t hat Cong ress i ncluded

§ 60541(g)(5)(C) to make explicit that multiple terms of

imprisonment are to be treated as a single aggregate

term there, reasoning that § 3584(c) might not otherwise

apply to the home-detention program: “the Second

Chance Act does not assess or change sentences,” the

majority explains, but rather “authorizes a different

location to serve” a sentence. Maj. Op. at 13. So, the

logic goes, there is no superfluity even without accepting

Bonnie’s interpretation of the statute. That distinction is

irrelevant. The crux of the matter is that both programs

look at crimes of conviction to determine eligibility. While

one program explicitly makes an ineligible conviction a

total disqualifier, the other program does not. So even

if that interpretive distinction were compelling, it could

not overcome the fact that the First Step Act Congress

enacted two different eligibility provisions with divergent

language excluding different individuals from taking

advantage of statutory benefits. We must not assume that

Congress did so haphazardly.

The distinction between § 60541(g)(5)(D) and

§ 3632(d)(4)(D) is further strengthened by Congress’

use of different terminology. In enacting the First Step

Act, Congress used “term of imprisonment” in the

33a

Appendix A

definition of “prisoner” (“a person who has been sentenced

to a term of imprisonment pursuant to a conviction for a

Federal criminal offense,” 18 U.S.C. § 3635(4)) as well as

in § 60541(g)(5)(D) (“[a prisoner who] is serving a term

of imprisonment based on conviction for an offense or

offenses that do not include [certain offenses]”). But it used

“sentence” in the time-credit provision in § 3632(d)(4)(D)

(“the prisoner is serving a sentence for a conviction under

[certain offenses]”). As Bonnie argues, this suggests that

“Congress expressly distinguished between ‘a sentence’

for a particular conviction and the overall ‘term of

imprisonment.’” Opening Br. at 17.

True, the Second Circuit correctly pointed out that

Congress itself used the terms interchangeably in 1984

when it enacted § 3584(c), noting that “[t]he heading of

§ 3584 is ‘Multiple sentences of imprisonment’ and the

caption of § 3584(c) is ‘Treatment of multiple sentence

as an aggregate’ while § 3584(c) itself refers to ‘terms

of imprisonment.’” Giovinco, 118 F.4th at 532 n.2. And

“[t]he title of a statute and the heading of a section are

tools available for the resolution of a doubt about the

meaning of a statute.” Yates v. United States, 574 U.S.

528, 540, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) (quoting

Almendarez-Torres v. United States, 523 U.S. 224, 234,

118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)).

Still, it is notable that these terms appear to be used

differently across different sections of the First Step Act

of 2018, which of course was enacted decades later by a

different Congress. Typically, where a statute “has used

one term in one place, and a materially different term

34a

Appendix A

in another, the presumption is that the different term

denotes a different idea.” Sw. Airlines Co. v. Saxon, 596

U.S. 450, 457-58, 142 S.Ct. 1783, 213 L.Ed.2d 27 (2022)

(quoting A. Scalia & B. Garner, Reading Law 170 (2012)).

So the fact that § 3584(c) used the terms interchangeably

does not mean that the First Step Act—enacted 34 years

later—also did.

Finally, the Second Circuit focused on the aggregation

provision and “precedent holding that the aggregation

provision applies to other sentencing credit programs”—

specifically, “time-served credits (§ 3585), good-time

credits (§ 3624), and residential drug-abuse program

credits (§ 3621).” Giovinco, 118 F.4th at 531-32. However,

those other programs are inapposite. Time-served

credits are available to all prisoners, so there is no need

to evaluate the impact of different components of the

sentence. 18 U.S.C. § 3585(b). Good-time credits are

available to all prisoners serving “a term of imprisonment

of more than 1 year” unless their sentence is life, so

aggregating sentences actually benefits prisoners. Id.

§ 3624(b)(1).

Further, that provision explicitly uses the phrase

“term of imprisonment,” like the aggregation provision,

and explicitly falls under BOP’s administrative control. Id.

(“[Credits are] subject to determination by the Bureau of

Prisons that, during that year, the prisoner has displayed

exemplary compliance with institutional disciplinary

regulations.”). And the residential drug-abuse program

uses discretionary language (the period of custody

“may be reduced by the [BOP]”) that leaves eligibility

35a

Appendix A

determinations to BOP. Id. § 3621(e)(2)(B). Thus, none

of the case law interpreting any of those provisions is

relevant to the question at hand.

At bottom, Bonnie’s view of the statute is much

more persuasive. The statutory emphasis on promoting

rehabilitation, the use of different language in the

terminally-ill-offender provision, and the basic logic

of what it means to “serve a sentence” counsel in favor

of agreeing with Bonnie that he will only “serve” the

ineligible sentence for 24 months out of the aggregate

144 months.

W hile the text and str ucture of the relevant

statutory provisions compel the conclusion that Bonnie’s

interpretation is the sound one, it bears noting the

peculiar—if not outright absurd—consequences that flow

from the majority’s reading. Under that interpretation,

Bonnie would be barred from earning First Step Act

credits for his otherwise-eligible 120-month sentence,

while serving a mere 24-month ineligible revocation term.

This disparity is so illogical that it strains credulity to

suggest Congress intended it.

And Bonnie’s case is hardly the outer limit of the

absurdity: another court recently found that a 2-month

sentence for possession of a contraband cell phone in

prison disqualified an individual from earning First Step

Act credits for the entirety of his separate 132-month

sentence for drug conspiracy. See Hill v. King, No.

36a

Appendix A

23-CV-1365, 2025 WL 1020604, at *6 (D. Minn. Apr. 7,

2025). So, a minor two-month offense rendered ineligible

a sentence sixty-six times longer—precisely the kind of

irrational result Congress could not have intended.

Those examples are troubling enough. But the

majority’s interpretation threatens consequences still

more untenable. Consider a case in which an individual

is sentenced to decades in prison for an eligible offense,

and only days for an ineligible one.

Worse still, the majority invites manipulation that

undermines the very purpose of the First Step Act

recidivism reduction program. One district court, for

example, recently increased the sentence it imposed

to account for potential reductions in prison time

served due to earned First Step Act credits—which

the Second Circuit rejected as a stand-alone sentence

justification. United States v. James, 151 F.4th 28, 40-43

(2d Cir. 2025). Now, the majority opens the door to similar

gamesmanship by prosecutors, who may pursue minor

ineligible charges to preclude defendants from obtaining

recidivism reduction credits for substantial portions of

their sentences. It is inconceivable that the Congress

which drafted the First Step Act—legislation designed

to encourage rehabilitation—intended its core incentive

to be so easily nullified.

37a

Appendix A

III.

Great respect is due to the many judges—including

my distinguished friends in the majority—who have

confronted this question and reached a different

conclusion. But to be sure, many of those judges did not

have the benefit of counseled briefing for the petitioner,

and many considered the question under the now-displaced

regime of Chevron deference.

In that pre-Loper Bright world, courts often yielded

to agency interpretations that strayed from statutory text.

But when viewed anew—free of such deference and guided

by the words Congress actually enacted—the statute

admits to one sensible reading: Bonnie’s interpretation

best accords with the text, structure, and purpose of the

First Step Act.

For that reason, and w ith due respect to my

colleagues, this opinion must part company with the

majority. I dissent.

38a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE DISTRICT

OF SOUTH CAROLINA, FLORENCE DIVISION,

FILED MAY 9, 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

No. 4:23-cv-01215-DCN

GREGORY ALLEN BONNIE,

Plaintiff,

R.S. DUNBAR, Warden,

Defendant.

Signed May 9, 2024

ORDER

This matter is before the court on Magistrate Judge

Thomas E. Rogers, III’s report and recommendation

(“R&R”), ECF No. 50, that the court grant defendant

R.S. Dunbar’s (“Warden Dunbar”) motion to dismiss or,

alternatively, for summary judgment, ECF No. 20. For

the reasons set forth below, the court adopts the R&R in

full and grants Warden Dunbar’s motion for summary

judgment.

39a

Appendix B

BACKGROUND

Petitioner Gregory Allen Bonnie (“Bonnie”) is an

inmate designated by the Federal Bureau of Prisons

(“BOP”) to serve his sentence at the Satellite Prison Camp

adjacent to Federal Correctional Institution Williamsburg

(“FCI Williamsburg”) in Salters, South Carolina.1 He filed

this petition seeking a writ of habeas corpus pursuant

to 28 U.S.C. § 2241, alleging that the BOP is denying

him time credits he earned under the First Step Act of

2018 (“FSA”), 18 U.S.C. § 3632(d)(4)(A), Pub. L. 115-391,

132 Stat. 5194, for his participation in Evidence-Based

Recidivism Reduction (“EBRR”) programming. ECF

No. 1, Pet.

The FSA governs the calculation of federal prison

sentences. Eligible federal inmates may earn additional

good time credits under the FSA. 18 U.S.C. § 3624(b). One

way those eligible inmates may earn good time credits is

through completion of EBRR programming, which allows

that inmate to earn time credits to be applied toward

time in pre-release custody or supervised release. See 18

U.S.C. § 3632(d)(4)(A). However, a prisoner is ineligible to

receive time credits if the prisoner is serving a sentence

for a disqualifying offense. See 18 U.S.C. § 3632(d)(4)(D).

Relevant here, a “prisoner is ineligible to receive time

credits under this paragraph if the prisoner is serving

1. The background for this case is gleaned from a combination

of the initial petition for a writ of habeas corpus under 28 U.S.C.

§ 2241, ECF No. 1; from Warden Dunbar’s motion for summary

judgment, ECF No. 16; and from the magistrate judge’s R&R,

ECF No. 23.

40a

Appendix B

a sentence for a conviction” under § 924(c), “relating

to unlawful possession or use of a firearm during and

in relation to any crime of violence or drug trafficking

crime.” 18 U.S.C. § 3632(d)(4)(D)(xxii). Bonnie is currently

imprisoned after he pleaded guilty to two criminal

sentences for separate offenses. He pleaded guilty to drug

distribution offenses as well as possession of a firearm in

violation of § 924(c) in his first offense. 2 United States v.

Bonnie (“USA v. Bonnie I”), No. 2:04-cr-00546-DCN-1

(D.S.C. Nov. 1, 2005), ECF No. 106. For his second offense,

Bonnie pleaded guilty to a conspiracy to possess and

distribute illicit drugs as well as possession with intent

2. On November 10, 2005, the court entered judgment against

Bonnie after he pleaded guilty to two counts of the superseding

indictment in criminal case United States v. Bonnie (“USA v.

Bonnie I”), No. 2:04-cr-00546-DCN-1 (D.S.C. Nov. 10, 2005),

ECF No. 106. Specifically, he pleaded guilty to engaging in a

conspiracy with two codefendants to manufacture, possess, and

distribute methamphetamine and to possess and distribute cocaine

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), 846, 851.

USA v. Bonnie I, ECF Nos. 36; 106. He also pleaded guilty to

possession of firearms in furtherance of a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1)(A)(i). USA v. Bonnie I, ECF Nos.

36; 106. The court sentenced Bonnie to a 180-month term which

consisted of 120 months for Count 1 and 60 months for Count 6,

to run consecutively. USA v. Bonnie I, ECF No. 106. The court

also stipulated that upon release from imprisonment, Bonnie was

to be placed on supervised release for eight years. Id. On June 7,

2017, the court placed Bonnie on supervised release. See USA v.

Bonnie I, ECF Nos. 144; 147. On May 27, 2021, the court revoked

Bonnie’s supervised release and imposed a 24-month sentence for

each count, to run concurrently with each other, but consecutively

to the term of imprisonment imposed in the second criminal case

described hereinafter. USA v. Bonnie I, ECF No. 166.

41a

Appendix B

to distribute heroin and methamphetamine on a specific

date. 3 United States v. Bonnie, (“USA v. Bonnie II”), No.

2:19-cr-0060-DCN-3 (D.S.C. May 27, 2021), ECF No. 1128.

Bonnie’s conviction for violation of § 924(c) makes him

ineligible for FSA time credit for EBRR programming.

See 18 U.S.C. § 3632(d)(4)(D). The parties dispute whether

that ineligibility only applies to his sentence for USA

v. Bonnie I or to both that sentence and the sentence

imposed for USA v. Bonnie II, which are set to run

consecutively. As Bonnie’s counsel succinctly phrased it:

“Does the 24-month § 924(c) revocation sentence taint the

separately imposed 120-month drug sentence such that

Mr. Bonnie is ineligible to earn FSA time credits for the

entire 144-month sentence?” ECF No. 39 at 8.

On March 27, 2023, Bonnie filed a petition for writ

of habeas corpus. ECF No. 1, Pet. Pursuant to 28 U.S.C.

§§ 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(c)

3. On May 27, 2021, the court entered judgment against

Bonnie after he pleaded guilty to two counts of the third

superseding indictment in United States v. Bonnie (“USA v.

Bonnie II”), No. 2:19-cr-0060-DCN-3 (D.S.C. May 27, 2021),

ECF No. 1128. Specifically, Bonnie pleaded guilty to engaging

in a conspiracy with twelve codefendants to possess with intent

to distribute and to distribute heroin and methamphetamine in

violation of 21 U.S.C. §§ 846, 841(b)(1)(A). USA v. Bonnie II, ECF

Nos. 463; 1128. He also pleaded guilty to possessing with intent

to distribute heroin and methamphetamine on or about October

24, 2018, in violation of 21 U.S.C. § 841(b)(1)(B). USA v. Bonnie II,

ECF Nos. 463; 1128. The court sentenced Bonnie to a 120-month

term for each count, to run concurrently with each other, but

consecutively with the term of imprisonment imposed in USA v.

Bonnie I. USA v. Bonnie II, ECF No. 1128.

42a

Appendix B

(D.S.C.), all pretrial proceedings in this case were referred

to Magistrate Judge Rogers. On May 31, 2023, Warden

Dunbar filed the instant motion to dismiss or, alternatively,

for summary judgment. ECF No. 20. On August 13, 2023,

Bonnie responded in opposition, ECF No. 39, to which

Warden Dunbar replied on August 28, 2023, ECF No. 43.4

On January 16, 2024, Magistrate Judge Rogers issued the

R&R recommending the court grant Warden Dunbar’s

motion for summary judgment and dismiss the Petition.

ECF No. 50, R&R. On February 14, 2024, Bonnie filed

objections to the R&R. ECF No. 54, to which Warden

Dunbar responded on March 12, 2024, ECF No. 58. As

such, the motion is fully briefed and is ripe for review.

II. STANDARD

Order on R&R

The recommendation of the magistrate judge carries

no presumptive weight, and the responsibility to make

a final determination rests with this court. Mathews

v. Weber, 423 U.S. 261, 270-71 (1976). The court may

“accept, reject, or modify, in whole or in part, the findings

4. In explanation for the delay between the motion and

responsive briefs, the magistrate judge indicated that Bonnie’s

response filing deadline to the motion to dismiss was extended

until fifteen days after the court determined whether to grant or

deny Bonnie’s motion to appoint counsel. ECF No. 21. Ultimately,

Bonnie acquired legal counsel separate from that motion, and,

therefore, though his original petition was filed pro se, Bonnie’s

subsequent response briefs were filed by his counsel. See ECF

Nos. 30; 38; 39; 54.

43a

Appendix B

or recommendations made by the magistrate judge . . .

or recommit the matter to the magistrate judge with

instructions.” 28 U.S.C. § 636(b)(1). The court is charged

with conducting a de novo review of any portion of the

magistrate judge’s report and recommendation to which

specific, written objections are made. 28 U.S.C. § 636(b)

(1). A party’s failure to object is accepted as agreement

with the conclusions of the magistrate judge. See Thomas

v. Arn, 474 U.S. 140, 149-50 (1985).

In the absence of a timely filed, specific objection, the

court reviews the report and recommendation only for

clear error. Diamond v. Colonial Life & Accident Ins.

Co., 416 F.3d 310, 315 (4th Cir. 2005) (citation omitted).

Furthermore, “[a] party’s general objections are not

sufficient to challenge a magistrate judge’s findings.”

Greene v. Quest Diagnostics Clinical Lab’ys, Inc., 455

F. Supp. 2d 483, 488 (D.S.C. 2006) (citation omitted).

When a party’s objections are directed to strictly legal

issues “and no factual issues are challenged, de novo

review of the record may be dispensed with.” Orpiano v.

Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citation omitted).

Analogously, de novo review is unnecessary when a party

makes general and conclusory objections without directing

the court’s attention to a specific error in a magistrate

judge’s proposed findings. Id.

44a

Appendix B

B. Summary Judgment5

Summary judgment shall be granted if the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine dispute as to

any material fact and that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “By

its very terms, this standard provides that the mere

existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only

disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the

entry of summary judgment.” Id. at 248. “[S]ummary

judgment will not lie if the dispute about a material fact is

‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.

“[A]t the summary judgment stage the judge’s function

is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a

genuine issue for trial.” Id. at 249. The court should view

the evidence in the light most favorable to the non-moving

party and draw all inferences in its favor. Id. at 255.

5. Warden Dunbar styled his motion as a motion to dismiss

or, alternatively, as a motion for summary judgment. ECF No.

20. The magistrate judge treated it as a motion for summary

judgment. R&R at 1. Neither party objects to the magistrate

judge’s treatment of the motion as one for summary judgment.

See ECF Nos. 54 at 5 & n.9; 58. This court likewise considers it

as a motion for summary judgment.

45a

Appendix B

III. DISCUSSION

Administrative Exhaustion

Although 28 U.S.C. § 2241 does not contain a statutory

exhaustion requirement, courts have required prisoners

to exhaust their administrative remedies prior to seeking

habeas review under § 2241. See Braden v. 30th Jud. Cir.

Ct., 410 U.S. 484, 490-91 (1973) (requiring exhaustion in

a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th

Cir. 2010) (noting courts require “exhaustion of alternative

remedies before a prisoner can seek federal habeas

relief” (internal quotation marks and citation omitted)).

Exhaustion allows prison officials to develop a factual

record and provides “an opportunity to resolve disputes

concerning the exercise of their responsibilities before

being haled into court.” Jones v. Bock, 549 U.S. 199, 204

(2007).

The Attorney General, through the BOP, has

responsibility for imprisoning federal offenders. United

States v. Wilson, 503 U.S. 329, 331 (1992) (citing 18 U.S.C.

§ 3621(a)). This responsibility includes the calculation of

an inmate’s term of imprisonment, which is recognized

as an “administrative purpose” well within the BOP’s

responsibilities as charged by Congress. See id. at 333-35.

If the Attorney General, through the BOP, does not give

Bonnie the sentencing credit he believes he deserves, he

can seek an administrative remedy. See 28 C.F.R. § 542.10

(2014). If Bonnie remains unsatisfied with the result upon

exhausting his administrative remedies, he may file a

petition under 28 U.S.C. § 2241. See Wilson, 503 U.S. at 336.

46a

Appendix B

Neither party contends that Bonnie has failed to

exhaust his administrative remedies, and the court

likewise finds them exhausted. R&R at 3 n.2; ECF No. 54

at 4 (noting that the parties agree that Bonnie exhausted

his administrative remedies with the BOP prior to filing

this action). Thus, Bonnie’s § 2241 petition is properly

before the court.

B. Statutory Interpretation of the FSA

The court begins with the sections of the FSA that

the parties agree are unambiguous before reviewing

those provisions where the parties’ interpretations

diverge. Thereafter the court will “use ‘traditional tools

of statutory construction’ to determine ‘whether Congress

has directly spoken to the precise question at issue.’”

Julmice v. Garland, 29 F.4th 206, 207 (4th Cir. 2022)

(quoting Prudencio v. Holder, 669 F.3d 472, 480 (4th

Cir. 2012)). “If—and only if—[the court’s] interpretive

toolkit leaves [it] with a genuine ambiguity do[es it] reach

the second question, which asks whether the agency’s

considered views about the meaning of the statute are

‘reasonable.’” Id. (citing Prudencio, 669 F.3d at 480). The

court begins with the statute.

In 2018, the FSA amended 18 U.S.C. § 3621, governing

federal prison sentences, and added related provisions

in §§ 3624 and 3632 concerning recidivism reduction

programming and incentives. Except for inmates

convicted of certain enumerated offenses, see 18 U.S.C.

§ 3632(d)(4)(D), or those with a final removal or deportation

order, id. § 3632(d)(4)(E), all inmates became eligible to

47a

Appendix B

earn up to ten (10) days of time credits for every thirty (30)

days of successfully completed BOP-approved “EvidenceBased Recidivism Reduction Programs” (“EBRR”) and

“Productive Activities” (“PAS”), see id. § 3632(d)(4)(A)(i).

Additionally, “[a] prisoner determined by the [BOP] to

be at a minimum or low risk for recidivating, who, over

2 consecutive assessments, has not increased their [sic]

risk of recidivism, shall earn an additional 5 days of time

credits for every 30 days of successful participation in

[EBRR] or [PAS].” See id. § 3632(d)(4)(A)(ii).

Among other incentives to encourage participation

in EBRR and PAS, eligible inmates who have earned

FSA time credits may apply those credits to their

time in prerelease custody or supervised release. See

id. § 3632(d)(1)-(4)(C). “Thus, FSA time credits, when

applied, advance the date when the prisoner will be

placed in prerelease custody (including home confinement

or residential reentry facilities), or accelerate the date

when the prisoner will leave BOP custody to start a term

of court-imposed supervised release.” De La Torre v.

Warden, FCI McDowell, 2024 WL 1080499, at *3 (S.D. W.

Va. Feb. 5, 2024) (internal quotation marks and citations

omitted), report and recommendation adopted, 2024 WL

1078266 (S.D. W. Va. Mar. 12, 2024); see also 18 U.S.C.

§ 3624(g)(3) (specifying that the BOP may apply up to

twelve months of earned time credits to advance a date

a prisoner begins to serve a term of supervised release).

To reiterate, the FSA sets out statutory criteria

defining who is eligible to earn and apply time credits

for early release from secured custody. One category of

48a

Appendix B

inmates deemed ineligible to apply FTC credits towards

earlier entry to prerelease custody or supervised release

are inmates convicted of certain enumerated offenses.

See 18 U.S.C. § 3632(d)(4)(D). Specifically, “[a] prisoner is

ineligible to receive time credits under this paragraph if

the prisoner is serving a sentence for a conviction under

any of the following provisions of law.” Id. Relevant to

this motion, one subsection includes persons convicted of

violating § 924(c). 18 U.S.C. § 3632(d)(4)(D)(xxii).

When Congress enacted the FSA in December 2018, it

did so against the backdrop of existing statutes, including

18 U.S.C. § 3584(c).6 In relevant part, § 3584 provides:

(a) Imposition of concurrent or consecutive

terms.—If multiple terms of imprisonment

are imposed on a defendant at the same

time, or if a term of imprisonment is imposed

on a defendant who is already subject to an

undischarged term of imprisonment, the terms

may run concurrently or consecutively, . . .

....

aggregate.—Multiple terms of imprisonment

ordered to run consecutively or concurrently

shall be treated for administrative purposes

as a single, aggregate term of imprisonment.

18 U.S.C. § 3584.

6. Congress enacted 18 U.S.C. § 3584 in 1984.

49a

Appendix B

This dispute centers on whether Bonnie is eligible, if at

all, to receive FSA time credits under the language of the

FSA. “Bonnie does not dispute that if he were serving only

the 24-month revocation sentence, he would be ineligible

to earn time credits against that sentence.” ECF No. 54 at

2 n.3. That is because revocation sentences are attributed

to the original conviction which, here, includes a conviction

for a § 924(c) offense. Id. However, the parties diverge as

to whether his ineligible § 924(c) offense also impacts his

eligible drug offense sentence that the court imposed in

USA v. Bonnie II. Bonnie argues that the court must look

to the plain text of the statute, and then to the statutory

context and the statute’s purpose, which, together, lead

to the unambiguous conclusion that Bonnie may receive

FSA time credits for the sentence he received for USA

v. Bonnie II. See ECF Nos. 39 at 12-22; 54 at 6-14. In

contrast, the government emphasizes that 18 U.S.C. § 3632

of the FSA must be read alongside 18 U.S.C. § 3584,

which, together, lead to the unambiguous conclusion that

the BOP must aggregate Bonnie’s sentences and find that

his § 924(c) conviction renders him ineligible for any FSA

time credits. ECF Nos. 43 at 3-13; 58 at 1, 3-4.

Magistrate Judge Rogers ultimately recommended

that the court grant Warden Dunbar’s motion for

summary judgment and dismiss Bonnie’s Petition. R&R

at 13-14. The R&R first summarized the relevant facts,

the parties’ arguments, and the relevant legal background

material to this dispute. Id. at 1-7. It noted that “[t]he

Court which revoked Bonnie’s term of supervised release

and imposed additional prison time indicated that the

reinstated sentence was to run consecutively to any

50a

Appendix B

sentence then-imposed.” Id. at 8. Consequently, the BOP

found Bonnie’s ongoing prison sentence to be related

to and stemming from his underlying conviction, which

included a conviction under § 924(c). Id. On that basis, the

BOP found Bonnie ineligible to earn time credits under

the FSA. Id. Upon review of the facts, arguments, and

legal authority, the magistrate judge recommended that

this court find “BOP’s interpretation of § 3632(d)(4)(D)

. . . to be a mandatory interpretation based on the BOP’s

other statutory obligations.” Id. (referencing 18 U.S.C.

§§ 3632(d)(4)(D), 3584(c)). Under that interpretation, the

BOP correctly found Bonnie to be ineligible to earn time

credits under the FSA. Id. at 8-9. The magistrate judge

then considered persuasive caselaw from other courts

which considered similar facts and arguments. Id. at

9-13. He observed that those courts consistently found

petitioners ineligible for time credits under the FSA. Id.

Finally, the R&R alternatively noted that if this court

were to find the statutory provisions to be ambiguous,

the court should find BOP’s interpretation of the statute

entitled to Chevron deference.7 Id. at 13. Under Chevron,

the magistrate judge recommended that the court find

the BOP’s interpretation reasonable such that the court

should dismiss Bonnie’s petition. Id.

7. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 865

(1984). Courts defer to an agency’s reasonable interpretation

of a statute when Congress has “charged [the agency] with

responsibility for administering the provision.” Id. Bonnie notes

that there is currently a pending decision from the Supreme Court

which may modify Chevron deference. ECF No. 54 at 2-3 & n.4

(citing Loper Bright Enters, Inc. v. Raimondo, 45 F.4th 359, 374

(D.C. Cir. 2022), cert. granted in part, 143 S. Ct. 2429 (2023)).

51a

Appendix B

Bonnie objects to the recommendation. ECF No. 54.

He argues that the magistrate judge made three critical

errors. Id. at 2-3. First, the R&R ignored and failed to

analyze the unambiguous meaning of the FSA as is gleaned

from the plain text, statutory context, and statutory

purpose of the act. Id. at 2, 6-12. Second, the R&R erred

by alternatively finding the BOP’s interpretation entitled

to Chevron deference when the FSA is unambiguous.

Id. at 2-3, 13-16. Third, the R&R improperly relied on

a series of unpublished cases that invoked the BOP’s

administration of discretionary prison programs that

predated the statutorily mandated FSA time credits. Id.

at 3, 16-18. For the foregoing reasons, Bonnie urges the

court to reject the R&R and deny the motion. Id. at 18.

Warden Dunbar filed a reply to Bonnie’s objections. 8

ECF No. 58. He emphasizes that Bonnie incorrectly urges

that court to ignore the mandate of 18 U.S.C. § 3584(c)

and its interplay with the FSA. Id. at 1. Moreover, Bonnie

fails to address the fact that every court decision that

has directly addressed this issue supports the BOP’s

position. Id. at 2. In essence, the passage of the FSA

did not change that the BOP was, and is, responsible for

determining sentencing credits. Id. at 3. Thus, the proper

interpretation of the FSA with § 3584(c) indicates that

Congress’s silence as to how aggregated sentences would

be treated under the FSA was not true silence because

it reflected that § 3584(c) already existed and sufficiently

answered that question. Id. (citing Walton v. Fikes, 2023

8. Warden Dunbar does not object to the magistrate judge’s

report and recommendation. ECF No. 58 at 5-6.

52a

Appendix B

WL 6283298, at *2 (D. Minn. Aug. 10, 2023), report and

recommendation adopted, 2023 WL 6282897 (D. Minn.

Sept. 26, 2023)). Moreover, the cases that both the R&R

and Warden Dunbar rely upon did not claim there was

any ambiguity in the FSA—instead, those cases relied

upon the administrative function of the BOP alongside

the explicit statutory language included in § 3584(c). Id. at

4. In any event, even if the court were to find the statute

ambiguous, Chevron remains good law such that BOP’s

reasonable interpretation of the statute should stand.

Id. at 5-6. For these reasons, Warden Dunbar urges the

court to adopt the R&R, grant the motion, and dismiss

the petition. Id.

The court begins by looking at the text of the statute.

The court then proceeds with “ ‘all the traditional tools

of construction,’ emptying [its] interpretive toolbox[] by

considering the ‘text, structure, history, and purpose’ of

[the FSA].” See Cela v. Garland, 75 F.4th 355, 361 (4th

Cir. 2023) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415

(2019)). Only after emptying the legal toolkit will the

court reach the second step and look towards the BOP’s

interpretation. See id.

Plain Text & Statutory Context

The court starts with the relevant statutory text.

First, the general provision as to FSA time credits broadly

mandates access to time credits: “[a] prisoner, except

for an ineligible prisoner under subparagraph (D), who

successfully completes [EBRR] programming or [PAS],

shall earn time credits.” 18 U.S.C. § 3632(d)(4)(A) (emphasis

53a

Appendix B

added). Second, the FSA defines “prisoner” as a “person

who has been sentenced to a ‘term of imprisonment’

pursuant to a conviction for a Federal criminal offense, or

a person in the custody of the [BOP].” 18 U.S.C. § 3635(4).

Third, the subparagraph defining ineligible offenses

specifies that “[a] prisoner is ineligible to receive time

credits under this paragraph if the prisoner is serving

a sentence for a conviction under any of the following

provisions of law.” 18 U.S.C. § 3632(d)(4)(D).

Bonnie argues that the plain meaning of the FSA favors

his interpretation. ECF No. 54 at 6-8. Bonnie highlights

the distinction between a “term of imprisonment” in

§ 3635(4), and “serving a sentence” in § 3632(d)(4)(D). ECF

Nos. 54 at 7; 39 at 14. He argues that the drafters of the

FSA used different phrases to distinguish between the

overall time spent in BOP custody—which Bonnie defines

as “term of imprisonment”—versus the time spent in

prison in connection with a particular conviction—which

Bonnie defines as “serving a sentence for a conviction.”

ECF Nos. 54 at 7; 39 at 14. Bonnie emphasizes that the

eligibility provision included in § 3632(d)(4)(D) is unique

because it “is not drawn from any other statute, and it

is not repeated elsewhere in the FSA.” ECF No. 54 at 7.

Bonnie interprets this language to mean that while he is

not serving the § 924(c) revocation sentence, he is eligible

to earn time credits under the plain language of the FSA

because he is a “prisoner” who is not “ineligible” under

subparagraph D during that period. Id.

In response, the government points to a persuasive

decision where a court defined the word “sentence” as

54a

Appendix B

used in § 3632(d)(4)(D). ECF No. 58 at 4 (citing Silva

v. Warden, FCC Coleman-Low, 2024 WL 98212, at *2

(M.D. Fla. Jan. 9, 2024)). In Silva, the court noted that

the provision of time credits is an administrative function

of the BOP. 2024 WL 98212, at *2. Therefore, since

§ 3632(d)(4)(D) addresses an inmate’s eligibility to earn

FSA time credits, the statutory provision implicates the

BOP’s administrative function, and therefore the word

“sentence” included in that statutory provision “cannot

be defined without reference to § 3584(c)’s aggregation

mandate.” Id. Though § 3632 may be silent as to the

definition of “sentence,” the Silva court’s interpretation

“is the only one that harmonizes sections 3632 and 3584.”

Id. Thus, the court found that deference to the BOP’s

interpretation of “sentence” as a single, aggregated term

was unnecessary where “the BOP’s interpretation is not

only reasonable, but ‘required’ by § 3584.” Id. The court

concluded by noting that “[w]hen only one interpretation

is permissible, the statute is not ambiguous.” Id.

The difference in terms—§ 3632(d)(4)(D)’s “serving

a sentence for a conviction” and § 3584(c)’s “term

of imprisonment”—is a meaningless distinction. “A

fundamental canon of statutory construction is that, unless

otherwise defined, words will be interpreted as taking

their ordinary, contemporary, common meaning.” Perrin

v. United States, 444 U.S. 37, 42 (1979). Though the FSA

includes a section devoted to definitions, the terms “term

of imprisonment” and “serving a sentence for a conviction”

are not included on that list. See 18 U.S.C. § 3635. The

court therefore interprets those terms according to

their ordinary, contemporary, common meaning and

55a

Appendix B

finds that “serving a sentence of conviction” and “term of

imprisonment” mean the same thing: an inmate has been

convicted of a criminal offense, and a court has sentenced

him or her to a term of incarceration. 9 See Huerta v.

Cordova, 2023 WL 8627542, at *4 (N.D. Tex. Dec. 13,

2023). The court’s conclusion is bolstered by similar

reasoning from persuasive authority. See, e.g., id. at *34; Wold v. Fed. Bureau of Prisons, 2018 WL 4906273, at

*4-6 (D.S.D. Oct. 9, 2018).

Despite finding that “term of imprisonment” and

“serving a sentence for a conviction” share one meaning,

the court concludes that the plain text of the statutory

provision remains unclear because § 3632(d)(4)(D) is silent

as to the eligibility of prisoners convicted of multiple

offenses—some eligible and others ineligible for time

credits. See 18 U.S.C. § 3632(d)(4)(D). Considering this

9. For the sake of completeness, this court paraphrases and

adopts those courts’ analysis. Petitioner rightly identifies that

§ 3584(c) speaks of aggregating “terms of imprisonment,” not

“sentences.” “This [too] is a distinction without a difference. Both

‘term of imprisonment’ and ‘sentence’ are used interchangeably to

refer to a period of incarceration imposed for violation of the law.”

Wold v. Fed. Bureau of Prisons, 2018 WL 4906273, at *6 (D.S.D.

Oct. 9, 2018). “Imprison” means to put in as if in prison, to confine.

See https://www.merriam-webster.com/dictionary/imprisonment

(last checked May 9, 2024). “Sentence” has as one of its definitions

a “judgment, specifically one formally pronounced by a court or

judge in a criminal proceeding and specifying the punishment to

be inflicted upon the convict” and “the punishment so imposed.”

See https://w w w.merriam-webster.com/dictionary/sentence

(last checked May 9, 2024). A “sentence” specifies punishment.

Id. Where the “sentence” includes confinement, the “sentence”

includes a “term of imprisonment.”

56a

Appendix B

ambiguity, the “statutory language must be read in the

context of the BOP’s statutory obligations for computing

sentences.” Huerta, 2023 WL 8627542, at *3; see also

McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (“However,

statutory language must always be read in its proper

context.”); South Carolina v. U.S. Army Corps of Eng’rs,

66 F.4th 189, 196 (4th Cir. 2023) (quoting Roberts v. SeaLand Servs., Inc., 566 U.S. 93, 101 (2012)) (“Because

statutory language ‘cannot be construed in a vacuum,

it is a fundamental canon of statutory construction that

the words of a statute must be read in their context

and with a view to their place in the overall statutory

scheme.’” (alterations adopted and internal quotation

marks omitted)). Thus, the court considers the appropriate

statutory context.

One such statutory obligation is found at 18 U.S.C.

§ 3584(c). That provision provides: “Multiple terms of

imprisonment ordered to run consecutively or concurrently

shall be treated for administrative purposes as a single,

aggregate term of imprisonment.” 18 U.S.C. § 3584(c).

“Administrative purposes” includes not only the computation

of sentences, but also the discretionary administrative

functions such as determining a “current offense” for early

release eligibility under 18 U.S.C. § 3621(e). See Moreno

v. Ives, 842 F. App’x 18, 20-22 (9th Cir. 2020) (“Insofar as

[the petitioner] argues that § 3584(c) is limited to sentence

computation, no such limit exists in the language of the

statute, and other courts have recognized that the statute

applies to all administrative determinations made by

BOP” (citation omitted)). Because the BOP is required

to aggregate terms of imprisonment for administrative

57a

Appendix B

purposes, it is reasonable for the BOP to apply the

aggregation rule to 18 U.S.C. § 3632(d)(4)(D) and conclude

that if one of the aggregated convictions precludes the

inmate from earning time credits, the entire aggregated

sentence has the same effect. Bonnie has offered no statute

or caselaw to support a contrary interpretation.

Instead, Bonnie argues that his interpretation of FSA

time credits is correct based on the statutory context of

other provisions within the FSA.10 See ECF Nos. 54 at 8-9;

39 at 14-15. In response, the government emphasizes that

the relevant statutory context is not merely the language

of the FSA but also the pre-existing statutory obligations

that governed administration of prison sentences at that

time.11 See ECF No. 58 at 3. In reply, Bonnie argues

10. Namely, Bonnie contrasts the ineligibility provisions

of § 3632(d)(4)(D) with the terminally ill offender ineligibility

provisions that were also included in the FSA. ECF Nos. 54 at

8-9; 39 at 14-19. In relevant part, the FSA modified the previously

enacted Second Chance Act of 2007’s pilot program for eligible

elderly and terminally ill offenders, 34 U.S.C. § 60541. Bonnie

highlights that unlike the FSA time credit’s exclusion provision,

the terminally ill offender exclusion expressly applies to a

defendant convicted of multiple offenses, so long as any one of

the offenses is listed as a disqualifying offense. ECF No. 39 at 15

(citing 34 U.S.C. § 60541).

11. The government emphasizes that Bonnie misinterprets

Congress’s silence regarding multiple convictions and the

ineligibility provision of the FSA. ECF No. 58 at 3. It highlights

that “Congress’s silence regarding how aggregated sentences

would be treated under the FSA is not a reflection that § 3584(c)

was to be ignored; instead, it was a reflection that § 3584(c) already

existed, already controlled in this situation, and was already

58a

Appendix B

that § 3584 does not establish that multiple sentences,

especially those imposed to run consecutively, will lose

their separate character.12 ECF No. 54 at 10-12.

The Supreme Court has directed courts to “interpret

the statute as a symmetrical and coherent regulatory

scheme,” and to “fit, if possible, all parts into an

harmonious whole.” Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(internal quotation marks and citations omitted).

sufficient to guide the BOP.” Id. (citing Walton, 2023 WL 6283298,

at *2). In other words, “[t]here was no reason for Congress to say

anything within the FSA about how consecutive sentences were

to be regarded by the BOP, because Congress had already said

everything it needed to say within § 3584(c).” Id. (citing Walton,

2023 WL 6283298, at *2).

12. Bonnie emphasizes that to hold as much would require

prisoners to serve a term of imprisonment that exceeds the

statutory maximum for certain offenses like his supervised

release violation. ECF No. 54 at 11. Moreover, BOP and the Parole

Commission’s practice is instructive because parole is determined

by the statute of conviction—not by the BOP. Id. While the Parole

Commission has long aggregated sentences for the purposes of

calculating “good time” and to set a parole eligibility date, see 28

C.F.R. § 2.5, that aggregation does not deprive the sentences of

their distinct parole implications: the aggregation of a parolable

sentence with a non-parolable sentences does not render the entire

sentence non-parolable, ECF No. 54 at 11-12. Similarly, the BOP

de-aggregates sentences to comply with a bilateral international

treaty that allows certain types of sentences imposed in the

United States on Mexican nationals to be served in Mexico. Id.

at 12. Bonnies seeks to extend that analysis to the application of

FSA time credits for prisons serving sentences for eligible and

ineligible offenses. Id.

59a

Appendix B

“Similarly, the meaning of one statute may be affected

by other Acts.” Id. It is therefore unsurprising that the

government’s position is echoed and mirrored in many

court decisions that have concluded that when Congress

enacted the FSA in December 2018, it did so against the

backdrop of existing statutes, including § 3584(c). See,

e.g., Satizabal v. Edge, 2023 WL 5746932, at *1 (E.D. Ark.

Sept. 6, 2023) (referencing courts’ previous incorporation

of § 3584(c) in analysis of residential drug abuse program

(“RDAP”) statutes); Dahda v. Hudson, 2023 WL 2815920,

at *2 (D. Kan. Mar. 7, 2023) (“[18 U.S.C. § 3584(c)] was

the existing law in 2018 when Congress passed the FSA,

and thus the FSA’s eligibility requirements must be

considered in light of that existing statutory scheme.”);

Giovinco v. Pullen, 2023 WL 1928108, at *2-4 (D. Conn.

Feb. 10, 2023) (“Thus, this provision must be read in the

context of the BOP’s statutory obligation to aggregate

concurrent and consecutive sentences for administrative

purposes.”). Consequently, Bonnie’s suggestion to consider

other provisions of the FSA while overlooking preexisting

statutes regulating the BOP’s administration of the prison

system—including widely used and understood definitions

arising from those statutes—misses the mark. See ECF

Nos. 54 at 8-9; 39 at 14-19.

Moreover, § 3584(c)’s directive to aggregate a term

of imprisonment for administrative purposes should be

considered alongside Congress’s broad delegation to

the BOP to manage prisoner’s sentences, including the

calculation of an inmate’s term of imprisonment—which

implicates the eligibility provisions for time credits

included in § 3632(d)(4)(D). See, e.g., Teed v. Warden

60a

Appendix B

Allenwood FCI Low, 2023 WL 4556726, at *2 (3d Cir.

July 17, 2023) (“Calculation of an inmate’s term of

imprisonment is widely recognized as an ‘administrative

purpose’ well within the BOP’s responsibilities as charged

by Congress.”), cert. denied, 144 S. Ct. 873 (2024);

Williams v. FCI Berlin, 2023 WL 5961688, at *4 (D.N.H.

Aug. 1, 2023), report and recommendation adopted, 2023

WL 5959740 (D.N.H. Sept. 13, 2023) (“Reasoning that the

BOP’s sentence calculations and eligibility determinations

are administrative functions, . . . courts have construed 18

U.S.C. § 3632(d)(4)(D) together with 18 U.S.C. § 3584(c).”).

In other words, “[d]eciding whether a prisoner is ineligible

to receive FSA credits is an ‘administrative’ decision.”

Frommie v. Fed. Bureau of Prisons, 2022 WL 18399537,

at *3 (D.S.D. Aug. 23, 2022), report and recommendation

adopted, 2022 WL 18399536 (D.S.D. Nov. 30, 2022).

Section 3584(c) provides that, “for administrative

purposes,” “[m]ultiple terms of imprisonment ordered

to run consecutively or concurrently shall be treated

. . . as a single, aggregate term of imprisonment.” 18

U.S.C. § 3584(c). Consequently, “[t]he BOP’s treatment

of [petitioner’s] sentences as a ‘single, aggregate term of

imprisonment’ is supported by Congressional enactment.”

Frommie, 2022 WL 18399537, at *3.

The court finds that the eligibility restrictions identified

in § 3632(d)(4)(D) must be read in the context of the BOP’s

preexisting statutory obligation to aggregate concurrent

and consecutive sentences for administrative purposes.

This harmonizes the ambiguity of the FSA not only with

statutory context but also with previous Supreme Court

decisions considering the BOP’s aggregation mandate. See

61a

Appendix B

Silva, 2024 98212, at *2; cf. Payton v. Rowe, 391 U.S. 54,

67 (1968) (holding that a prisoner incarcerated on multiple

sentences is “in custody” for purposes of habeas relief on

all sentences); Johnson v. United States, 529 U.S. 694, 700

(2000) (concluding that a defendant’s original sentences

and a subsequent sentence he received for revocation of

supervised release were both considered one sentence

after aggregation).

Courts “don’t ‘resort to legislative history to cloud

a statutory text that is clear.’” South Carolina, 66

F.4th at 197 (quoting Ratzlaf v. United States, 510 U.S.

135, 147-48 (1994)). Upon finding that the statutory

context clearly establishes that the BOP is required

to administratively aggregate sentences—implicating

the sentence management requirements imposed by

the FSA—the court finds that the BOP’s interpretation

accords with the plain language and statutory context.

See id. Consequently, the court need not delve into the

depths of the FSA’s purpose.13 See id.

13. Bonnie argues that construing § 3632(d)(4)(D) broadly

alongside the aggregation mandate in § 3584(c), runs contrary

to the FSA’s purpose. ECF No. 54 at 12-13 (citing Lallave v.

Martinez, 635 F. Supp. 3d 173, 189-90 (E.D.N.Y. 2022)). That

decision also notes that “courts are instructed to turn to legislative

history only after ‘the plain language and canons of statutory

interpretation fail to resolve statutory ambiguity.’” Lallave, 635

F. Supp. 3d at 189 (quoting United States v. Dauray, 215 F.3d

257, 264 (2d Cir. 2000)). Therefore, since the court resolves the

statutory ambiguity through analysis of the plain language and

canons of statutory interpretation, it need not reach Bonnie’s

arguments as to the statute’s purpose.

62a

Appendix B

In sum, the court finds that the plain text and

statutory context of the FSA indicate Congress’s intention

that an inmate convicted of multiple offenses, at least one

of which is ineligible to earn time credits under the FSA, is

ineligible to earn time credits under the FSA because the

BOP is statutorily mandated to aggregate the sentence.

Precedent

Precedent supports this conclusion. The court first

notes that there is no direct binding precedent from

either the Fourth Circuit or the Supreme Court on this

exact question.14 The court has identified three on-point

district court decisions in the Fourth Circuit that inform

this analysis—each holding that a petitioner is ineligible

to earn FSA time credit when serving an aggregate term

14. The parties identify that the Fourth Circuit recently

issued an unpublished per curiam opinion affirming a district

court’s decision that a § 2241 petitioner was ineligible for time

credits where he was serving a sentence for eligible drug offenses

and for an ineligible § 924(c) conviction. ECF Nos. 54 at 9 n.12; 58

at 2. That decision affirmed the district court’s analysis finding

that the prisoner-petitioner was ineligible for sentencing time

credits because of his § 924(c) conviction. See McNeill v. Ramos,

2023 WL 6442551, at *1 (4th Cir. Oct. 3, 2023). The Fourth Circuit

opinion was five sentences long, only one of which related to the

question of time credits. Id. Bonnie contends that this decision is

unpersuasive and that it was made in error because it “begin[s] and

end[s] [its] analysis with 18 U.S.C. § 3584(c), with no explanation of

why the text of the First Step Act itself does not govern eligibility.”

ECF No. 54 at 9 n.12. Nevertheless, the court finds that this

short decision further supports the undersigned’s conclusion as

to Bonnie’s ineligibility for time credits.

63a

Appendix B

of imprisonment that includes a sentence for a § 924(c)

conviction. See Mancillas v. Fed. Bureau of Prisons,

2023 WL 5404229, at *5 (D. Md. Aug. 22, 2023); Banks

v. King, 2023 WL 8242450, at *4 (E.D.N.C. Nov. 28,

2023); Richardson v. Warden FCI Edgefield, 2024

WL 1862195, at *5 (D.S.C. Feb. 8, 2024), report and

recommendation adopted, 2024 WL 1861555 (D.S.C.

Apr. 29, 2024). Nationally, three circuits have opined

on this issue—the Third Circuit, the Sixth Circuit, and

the Eighth Circuit—and each has held that the BOP

did not err by aggregating the terms of imprisonment

and finding an ineligible offense made the petitioner

ineligible for FSA time credits even when that ineligible

offense was imposed consecutive to other sentences. See

Teed, 2023 WL 4556726; Keeling v. Lemaster, 2023 WL

9061914 (6th Cir. Nov. 22, 2023); Sok v. Eischen, 2023

WL 5282709 (8th Cir. Aug. 17, 2023).

Unsurprisingly, the government relies heavily on

the large body of persuasive decisions which have held

that the BOP has the discretion to aggregate eligible

and ineligible sentences imposed by sentencing courts

in its analysis of which prisoners may earn FSA time

credits. ECF Nos. 20 at 6-11; 43 at 5-10; 58 at 2-4, 6. In

contrast, Bonnie emphasizes that all of those decisions

should be unpersuasive because they are not grounded

in principles of statutory interpretation, they relied on

laws which predated the FSA,15 they erroneously invoked

15. Bonnie argues that the government’s reliance on caselaw

that draws analogies to courts’ previous incorporation of § 3584(c)

to interpretation of RDAP is fundamentally flawed. See ECF

Nos. 39 at 19-20; 54 at 16-18. Namely, the residential drug abuse

64a

Appendix B

Chevron, and often were based on petitions brought by

pro se prisoners. See ECF Nos. 39 at 26-29; 54 at 3, 14,

16-18. At the end of the day, Bonnie does not identify a

single case which finds in his favor on this specific issue.

See ECF Nos. 39 at 4 n.7, 21-22, 24-29; 54 at 9 n.12, 1618. The government highlights as much. See ECF No. 58

at 1 (“[Bonnie] asks this Court to find that every other

court nationwide that considered this issue conducted an

program (“RDAP”) differs from the FSA because the language

included in RDAP is fully discretionary:

The period a prisoner convicted of a nonviolent offense

remains in custody after successfully completing a

[residential substance abuse] treatment program may

be reduced by the [BOP], but such a reduction may

not be more than one year from the term the prisoner

must otherwise serve.

18 U.S.C. § 3621(e)(2)(B). In contrast, the FSA provides that time

credits “shall be earned,” 18 U.S.C. § 3632(d)(4)(A); and that they

“shall be applied,” 18 U.S.C. § 3632(d)(4)(C). When the Supreme

Court considered RDAP’s mandate, it concluded that “[w]hen an

eligible prisoner successfully completes drug treatment, the [BOP]

thus has the authority, but not the duty, both to alter the prisoner’s

conditions of confinement and to reduce his term of imprisonment.”

Lopez v. Davis, 531 U.S. 230, 241 (2001) (emphasis added). In

reaching that conclusion, the Supreme Court contrasted the RDAP

statute’s use of the permissive “may” with the discretion-less

“shall” elsewhere in the statute. Id. Thus, Bonnie urges the court

to find those cases incorporating § 3584(c) based on the courts’

longstanding practice of doing so in RDAP cases to be erroneous

because the permissive language of the RDAP statute conflicts

with the mandatory language of the FSA’s time credit eligibility

provisions. ECF Nos. 39 at 19-20; 54 at 17-18.

65a

Appendix B

incorrect analysis in reaching the same result Magistrate

Judge Rogers reached in his R&R.”), at 2 (“[Bonnie] cites

to no case on point that supports his position.”); see also

ECF Nos. 43 at 1.

In fact, a detailed review of court cases across

the country suggests that Bonnie’s circumstances are

neither novel nor unique. For example, other courts have

considered whether a petitioner who violated supervised

release of his or her § 924(c) conviction and further

committed additional eligible drug crimes to nonetheless

be ineligible for FSA time credits. See, e.g., Dahda, 2023

WL 2815920, at *1; Mancillas, 2023 WL 5404229, at *1;

Banks, 2023 WL 8242450, at *1. Additionally, other courts

have considered the eligibility of a prisoner serving a

prison sentence for two separate judgments, only one

of which included an ineligible offense, and found that

petitioner entirely ineligible for FSA time credits. See, e.g.,

Williams, 2023 WL 5961688, at *3-4. This is consistent

with caselaw where a petitioner imprisoned for an eligible

offense is thereafter convicted of the ineligible offense

of possession of contraband in prison—courts have

found that petitioner ineligible for FSA time credits in

aggregate. See, e.g., Satizabal, 2023 WL 5746932, at *1

(report and recommendation); Limbrick v. Rivers, 2023

WL 8481850, at *1-2 (N.D. Tex. Oct. 13, 2023), report

and recommendation adopted, 2023 WL 8482886 (N.D.

Tex. Dec. 7, 2023); Ulloa v. Cruz, 2024 WL 1117092, at *1

(M.D. Pa. Mar. 14, 2024). To be sure, Bonnie is sentenced

with two separate judgments, only one of which includes

an ineligible offense, but under the plain language of the

statute read in its statutory context, that ineligible offense

66a

Appendix B

impacts his entire sentence such that he is ineligible for

FSA time credits.16

16. The court considers whether the BOP’s interpretation

of the FSA is “reasonable” if, and only if, the court’s finds

that the statute is ambiguous. See Julmice, 29 F.4th at 207

(citing Prudencio, 669 F.3d at 480). Upon finding the statute

unambiguous, the court need not reach the question of whether

BOP’s interpretation was reasonable. See id. Nevertheless, the

court alternatively finds that even if 18 U.S.C. § 3632(d)(4)(D) were

ambiguous, the BOP’s interpretation as to that statutory gap is

reasonable and entitled to deference. See Chevron, 467 U.S. at

843. At the first step, the court found the statute unambiguous as

to a prisoner’s eligibility for FSA time credits where a prisoner

has multiple offenses or multiple sentences running consecutively

where some of those offenses are eligible for FSA time credits,

and others are ineligible. See Dahda, 2023 WL 2815920, at *2.

However, if the court were to reach the second step, the court

would find that the administering agency—the BOP—has filled the

statutory gap in a reasonable way considering Congress’s design.

See Lopez v. Davis, 531 U.S. 230, 242 (2001).

Several courts have held that the statute is ambiguous. See,

e.g., Sok v. Eischen, 2022 WL 17156797, at *3 (D. Minn. Oct. 26,

2022) (“The terms of § 3632(d)(4)(D) ‘do not directly answer this

question’ and ‘[c]ontext does not clear things up’ which leaves

the Court ‘with an ambiguous provision.’” (quoting Voigt v. U.S.

Env’t Prot. Agency, 46 F.4th 895, 901 (8th Cir. 2022))), report and

recommendation adopted 2022 WL 17128929 (D Minn. Nov. 22,

2022), aff ’d 2023 WL 5282709 (8th Cir. Aug. 17, 2023); Mancillas,

2023 WL 5404229, at *5 (noting that ambiguity exists as what

was meant by “serving a sentence” for certain convictions in

the eligibility provision included at 18 U.S.C. § 2632(d)(4)(D)).

Upon finding ambiguity, those courts each found the BOP’s

interpretation of the statute to be reasonable, particularly

considering § 3584(c)’s requirement that consecutive sentences

be treated as a single, aggregate sentence for administrative

purposes. See, e.g., Dahda, 2023 WL 2815920, at *2; Sok, 2022

67a

Appendix B

IV. CONCLUSION

For the foregoing reasons, the court ADOPTS the

report and recommendation, GRANTS the motion for

summary judgment, and DENIES the petition for writ

of habeas.

AND IT IS SO ORDERED.

/s/ David C. Norton

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

May 9, 2024

Charleston, South Carolina

WL 17156797, at *5. The court follows and adopts the analysis of

other courts. As such, had the court found the FSA ambiguous,

it would have granted the motion for summary judgment on the

second step of the Chevron analysis.

68a

Appendix

APPENDIX

C — REPORT

AND

RECOMMENDATION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

SOUTH CAROLINA, FLORENCE DIVISION,

FILED JANUARY 16, 2024

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

C/A No. 4:23-1215-DCN-TER

GREGORY ALLEN BONNIE,

Petitioner,

WARDEN DUNBAR,

Respondent.

REPORT AND RECOMMENDATION

The Petitioner, Gregory Allen Bonnie (“Petitioner”),

appearing pro se, filed this petition for writ of habeas

corpus pursuant to 28 U.S.C. § 22411 on March 27, 2023.

Counsel filed a notice of appearance on behalf of Petitioner

on June 28, 2023. The Respondent filed a motion to

dismiss or for summary judgment along with supporting

1. This habeas corpus case was automatically referred

to the undersigned United States Magistrate Judge pursuant

to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule

73.02, DSC. Because this is a dispositive motion, this report and

recommendation is entered for review by the district judge.

69a

Appendix C

memorandum and exhibits. (ECF No. 20). Petitioner filed

a response to the motion through counsel on August 13,

2023. (ECF No. 39). Respondent filed a reply on August

28, 2023. (ECF No. 43).

STANDARD FOR SUMMARY JUDGMENT

As previously stated, the Respondent filed a motion

to dismiss, or for summary judgment. The undersigned

will treat this motion as one for summary judgment under

Rule 56 of the Federal Rules of Civil Procedure.

The moving party bears the burden of showing that

summary judgment is proper. Summary judgment is

proper if there is no genuine dispute of material fact and

the moving party is entitled to judgment as a matter of

law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Summary judgment is proper if the nonmoving party fails to establish an essential element of any

cause of action upon which the non-moving party has the

burden of proof. Celotex, 477 U.S. 317. Once the moving

party has brought into question whether there is a genuine

dispute for trial on a material element of the non-moving

party’s claims, the non-moving party bears the burden of

coming forward with specific facts which show a genuine

dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574

(1986). The non-moving party must come forward with

enough evidence, beyond a mere scintilla, upon which

the fact finder could reasonably find for it. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts

and inferences to be drawn therefrom must be viewed in

70a

Appendix C

the light most favorable to the non-moving party. Shealy

v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However,

the non-moving party may not rely on beliefs, conjecture,

speculation, or conclusory allegations to defeat a motion

for summary judgment. Barber v. Hosp. Corp. of Am., 977

F.2d 874-75 (4th Cir. 1992). The evidence relied on must

meet “the substantive evidentiary standard of proof that

would apply at a trial on the merits.” Mitchell v. Data

General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

To show that a genuine dispute of material fact exists, a

party may not rest upon the mere allegations or denials of his

pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits

a proper summary judgment motion to be opposed by any

of the kinds of evidentiary materials listed in Rule 56(c),

except the mere pleadings themselves). Rather, the party

must present evidence supporting his or her position through

“depositions, answers to interrogatories, and admissions on

file, together with . . . affidavits, if any.” Id. at 322; see also

Cray Communications, Inc. v. Novatel Computer Systems,

Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d

86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

DISCUSSION2

A. Background

Petitioner is a federal inmate designated by the

Bureau of Prisons (BOP) to the Satellite Prison Camp

2. Respondent submits that Petitioner has exhausted his

administrative remedies with the BOP prior to filing this action.

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adjacent to FCI Williamsburg in Salters, South Carolina.

Petitioner filed this action on March 27, 2023, alleging the

BOP is denying him credits he earned under the First Step

Act (FSA), 18 U.S.C. § 3632(d)(4)(A) for his participation in

the Evidence-Based Recidivism Reduction Programming

(EBRR programming). (ECF No. 1). Petitioner was

sentenced in federal court in South Carolina to two

sentences to run consecutively: (1) a 120-month sentence,

which consists of concurrent 120-month sentences for

convictions under 21 U.S.C. § 846 and 21 U.S.C. § 841; and

(2) a 24-month sentence for violating a supervised release

term imposed for earlier convictions for 21 U.S.C. § 846

and 18 U.S.C. § 924(c). Based on its interpretation of the

relevant statutes, the BOP treats the two sentences as a

single aggregate sentence for purposes of time credits

under the FSA and, because the § 924(c) sentence is

ineligible for FSA time credits, it found him ineligible

to earn time credits during the term of the aggregate

sentence. The Petitioner’s projected release date via

applied jail credits and Good Conduct Time Release is

January 13, 2029. (Respondent’s memorandum, ECF

No. 20 at 2). As set forth in the response by counsel for

Petitioner:

If Mr. Bonnie was serving only the 120-month

sentence for the drug offenses, he would be

eligible to earn First Step Act time credits

(“FSA time credits” or “time credits”) against

the sentence because the underlying drug

offenses are not ineligible under the FSA.

Conversely, for the purpose of this motion,

Mr. Bonnie does not dispute that, if he were

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serving only the 24-month revocation sentence,

he would be ineligible to earn time credits

against that sentence. That is because § 924(c)

is an ineligible offense under the FSA and

revocation sentences are attributed to the

original conviction.

The dispute is this: Does the 24-month § 924(c)

revocation sentence taint the separately

imposed 120-month drug sentence such that Mr.

Bonnie is ineligible to earn FSA time credits

for the entire 144-month sentence?

(ECF No. 39 at 8).

B. Arguments

Respondent filed a motion for summary judgment

arguing this action should be dismissed because the BOP

determines sentence credits and Petitioner’s First Step

Act(FSA) credit eligibility was properly determined as

ineligible due to his § 924(c) conviction. (ECF No. 20). It

asserts that the aggregation of sentences is mandatory

under 18 U.S.C. § 3584(c), 3 thus an inmate serving a

term of imprisonment which includes a sentence for a

disqualifying offense, is not eligible for FSA time credits.

3. 18 USC § 3584(c) provides:

Multiple terms of imprisonment ordered to run

consecutively or concurrently shall be treated for

administrative purposes as a single, aggregate term

of imprisonment.

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Appendix C

Petitioner argues the BOP incorrectly interprets

§ 3584(c) and improperly aggregates his two sentences.

He contends his consecutive sentences should be viewed

separately for the purposes of FSA time credits, and he

argues he cannot be “serving” a sentence for a longer

period than that imposed by the sentencing court. Also,

he argues the plain meaning of the FSA is that one should

be eligible to earn and apply time credits when not serving

a sentence for an ineligible offense.4

C. Analysis

Habeas corpus proceedings are the proper mechanism

for a prisoner to challenge the legality or duration of his

4. Petitioner sets forth several arguments in support of his

position. Petitioner points to contrasting language used in the

FSA’s elderly and terminally ill offender ineligibility provisions.

Specifically, Petitioner notes the elderly and terminally ill

offender statute expressly provides a prisoner is ineligible, even

with multiple offenses, so long as any one of the multiple offenses

is a crime of violence. (ECF No. 39 at 15). Further, Petitioner

argues § 3584(c), which says for administrative purposes, multiple

sentences are treated as one, does not mean the prisoner is actually

serving a sentence for each offense for the entire aggregate

term. (ECF No. 39 at 16). Petitioner asserts § 3584(c) does not

provide that multiple sentences will lose their separate character,

especially those sentences that are run consecutively. (Id. at 17).

If applying § 3584(c) to aggregate the sentence actually meant

each individual sentence turns into the aggregate sentence, the

result could be serving more time than the statutory max for

an individual sentence. Petitioner notes the Parole Commission

has aggregated sentences for calculating parole eligibility dates

without the aggregation of a parolable and a nonparolable sentence

rendering the entire sentence non-parolable, with each sentence

maintaining its distinct parole implications. (ECF No. 39 at 18).

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Appendix C

custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

The primary means of attacking the validity of a federal

conviction and sentence is through a motion pursuant to

28 U.S.C. § 2255, while a petition for habeas corpus under

§ 2241 is the proper method to challenge the computation

or execution of a federal sentence. See United States v.

Little, 392 F.3d 671, 678-79 (4th Cir. 2004); Diaz v. Warden,

FCI Edgefield, 2017 WL 2985974, at *2 (D.S.C. July 13,

2017) (noting a § 2241 petition “is the proper means for

a federal prisoner to challenge the BOP’s sentencing

calculations”). “A motion pursuant to § 2241 generally

challenges the execution of a federal prisoner’s sentence,

such as parole matters, computation of sentence by prison

officials, prison disciplinary actions, and prison transfers.”

Manigault v. Lamanna, 2006 WL 1328780, at *1 (D.S.C.

May 11, 2006). A petition under § 2241 must be brought

against the warden of the facility where the prisoner is

being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542

U.S. 434-35 (2004).

The execution of sentences and the computation of

jail time is an administrative function under the authority

of the Attorney General. The Attorney General has

delegated this task to the BOP, including the responsibility

for computing time credits and determining a sentence

termination date once a defendant actually commences

serving his sentence. See United States v. Wilson, 503 U.S.

329, 334-35 (1992). Accordingly, the Attorney General,

through the BOP, must make the initial determination

of sentence credits; a district court does not have the

jurisdiction to make an initial determination. See

Vazquez v. Knight, 2021 WL 1625002, at *2 (D.S.C. Apr.

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Appendix C

27, 2021) citing U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir.

1998) (unpublished table decision); Garcia v. Janson,

2023 WL 3855377, at *3 (D.S.C. May 1, 2023), report and

recommendation adopted, 2023 WL 3559697 (D.S.C. May

19, 2023).

The FSA governs the calculation of federal prison

sentences. Section 102(b) of the FSA amended 18 U.S.C.

§ 3624(b), allows federal inmates to earn additional good

time credits. See P.L. 115-391, § 102(b)(1). The FSA allows

eligible inmates who successfully complete evidencebased recidivism reduction programming to earn time

credits to be applied toward time in pre-release custody

or supervised release. See 18 U.S.C. § 3632(d)(4)(A). A

prisoner is ineligible to receive time credits if the prisoner

is serving a sentence for a disqualifying offense. See

18 U.S.C. § 3632(d)(4)(D). Relevant here, a “prisoner is

ineligible to receive time credits under this paragraph if

the prisoner is serving a sentence for a conviction” under

“Section 924(c), relating to unlawful possession or use of

a firearm during and in relation to any crime of violence

or drug trafficking crime.” 18 U.S.C. § 3632(d)(4)(D)

(xxii). 18 U.S.C. § 3632(d)(4)(D) describes inmates that

are ‘ineligible to receive time credits’ under subchapter

D (the Risk and Needs Assessment System) if serving

a term of imprisonment for conviction under any of the

provisions listed therein. It is outside the BOP’s authority

to alter the exclusions as stated in the FSA. . . . Statutory

exclusions may only be amended by Congress. See id.

at 2713. The BOP codified its procedures at 28 C.F.R.

§ 523.41(d), which states that “[a]ny inmate sentenced

to a term of imprisonment pursuant to a conviction for a

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Appendix C

Federal criminal offense, or any person in the custody of

the Bureau, is eligible to earn FSA time credits, subject

to the exception described in paragraph (d)(2) of this

section.” Section 523.41(d)(2) explains that if the “inmate is

serving a term of imprisonment for an offense specified in

18 U.S.C. 3632(d)(4)(D),” which includes sentences imposed

under § 924(c), “the inmate is not eligible to earn FSA time

credits.” Id., see also § 3632(d)(4)(D)(xxii).

As previously stated, this Petition raises questions as

to whether a sentence imposed following the revocation of

supervised release for § 924(c) makes an inmate ineligible

to earn ETCs, whether inmates are still ineligible to earn

ETCs after the disqualifying sentence has been fully

served, and relatedly, whether the aggregating of multiple

sentences is an appropriate basis for denying an inmate

the ability to earn FSA credits.

The Court which revoked Bonnie’s term of supervised

release and imposed additional prison time indicated

that the reinstated sentence was to run consecutively to

any sentence then-imposed. 18 U.S.C. § 3584 addresses

multiple sentences of imprisonment and specifically

provides that “[m]ultiple terms of imprisonment ordered

to run consecutively or concurrently shall be treated

for administrative purposes as a single, aggregate

term of imprisonment.” 18 U.S.C. § 3584(c). When

Bonnie’s supervised release was revoked and additional

incarceration time was imposed, it was related to and

stemmed from his underlying conviction, which included

a conviction under § 924(c). On that basis, the BOP found

him ineligible to earn ETCs under the FSA. Thus, the

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Appendix C

BOP treated Bonnie’s new sentence, and the sentence

stemming from the revocation of his supervised release

for his § 924(c) conviction, as one aggregate term of

imprisonment.

The BOP’s interpretation of § 3632(d)(4)(D) appears

to be a mandatory interpretation based on the BOP’s

other statutory obligations. Title 18 U.S.C. § 3584(c)

provides that “[m]ultiple terms of imprisonment ordered

to run consecutively or concurrently shall be treated for

administrative purposes as a single, aggregate term

of imprisonment.”5 Thus, when Petitioner’s supervised

release was revoked and additional incarceration time

was imposed, it was related to and stemmed from his

underlying conviction, which included a conviction under

§ 924(c). Therefore, the BOP found Petitioner ineligible to

earn Extra Time Credits under the FSA. A district court

addressed this issue in a recent case, Walton v. Fikes, 2023

WL 6283298, at *1-2 (D. Minn. Aug. 10, 2023), report and

recommendation adopted sub nom., 2023 WL 6282897 (D.

Minn. Sept. 26, 2023), as follows:

Walton argues that only during the 60-month

period when he is serving his sentence for the

gun offense should he be excluded from earning

time credits under the FSA. In the petition for

a writ of habeas corpus now before the Court,

Walton requests that the Court direct the BOP

5. Neither party has cited to any cases on point in this circuit.

It appears this issue has not been addressed in the 4th Circuit.

Further, that the determination of eligibility in this case is an

administrative function does not appear to be disputed.

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Appendix C

to apply the FSA time credits that Walton

believes he is rightfully owed.

Walton’s argument is not facially absurd: Most

of the time he has spent and will spend in prison

are wholly the result of an offense that is not

excluded from eligibility under the FSA, and it

is not unreasonable to think that Walton might

therefore be eligible to earn FSA time credits

for at least some of the period that he spends

in prison. The problem for Walton is 18 U.S.C.

§ 3584(c), which provides that “[m]ultiple terms

of imprisonment ordered to run consecutively or

concurrently shall be treated for administrative

purposes as a single, aggregate term of

imprisonment.” As far as this Court can tell,

every court to consider the question—and

since the time that Walton filed his habeas

petition, there have been many courts that have

considered the question—has concluded that

the effect of § 3584(c) is to exclude prisoners

in Walton’s situation from eligibility under the

FSA. See, e.g., Teed v. Warden FCI Allenwood,

No. 23-1181, 2023 WL 4556726, at *1-2 (3d Cir.

July 13, 2023); Wallace v. Knight, No. 22-CV6705 (KMW), 2023 WL 4954727, at *1 (D.N.J.

Aug. 3, 2023); Cortez v. Hemingway, No. 2:22CV-12234, 2023 WL 4274957, at *2 (E.D. Mich.

June 29, 2023); Patillar v. Goldey, No. 22-CV0866, 2023 WL 4307651, at *2-3 (W.D. Okla.

May 26, 2023); Rose v. Yates, No. 2:22-CV-0214

(BSM/PSH), 2023 WL 3198298, at *2-3 (E.D.

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Appendix C

Ark. May 2, 2023); Ledford v. LeMaster, No.

23-CV-0030, 2023 WL 2905376, at *3 (E.D. Ky.

Mar. 28, 2023); Goodman v. Sage, No. 4:22-CV0981, 2022 WL 18028148, at *3 (M.D. Penn. Dec.

30, 2022) (noting that “[t]his argument . . . has

been consistently rejected by courts within and

beyond this district”); Giovinco v. Pullen, No.

3:22-CV-1515 (VAB), 2023 WL 1928108, at *2-3

(D. Conn. Feb. 10, 2023).

Among the first of those cases to reach that

conclusion arose out of this District. See Sok

v. Eischen, No. 22-CV-0458 (ECT/LIB), 2022

WL 17156797 (D. Minn. Oct. 26, 2022), Report

and Recommendation adopted by 2022 WL

17128929 (D. Minn. Nov. 22, 2022). As explained

in Sok, “[c]ourts have consistently held [in other

contexts] that sentence calculation by the BOP

and the BOP’s administration of incentives

which reduce the length of a prisoner’s term

of imprisonment are administrative functions

of the BOP subject to § 3584(c).” Sok, 2022

WL 17156797, at *5 (citing cases employing

similar logic to issues concerning the BOP’s

administration of the Residential Drug Abuse

Treatment Program). Applying the FSA to

sentence calculations, explained Sok, is an

administrative task, and the BOP is bound by

§ 3584(c) in applying the FSA.

...

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Appendix C

Because Wa lt on’s cla i m cha l lenges the

administration of a sentence, the Court

must look to § 3584(c) to determine how the

sentence is to be treated. And under § 3584(c),

consecutively imposed sentences “shall be

treated for administrative purposes as a single,

aggregate term of imprisonment.”

...

Walton argues that under BOP Policy Statement

5880.28, “[a]ll counts in a single [judgment and

conviction] shall be served in the order imposed

by the court,” and the BOP’s aggregation of

his sentences is inconsistent with this policy

statement. This argument fails as well. As an

initial matter, even if BOP Policy Statement

5880.28 did contradict § 3584(c), it would be

the statute, not the policy statement, that

would control. But BOP Program Statement

5880.28 itself goes on to state that “reference

to a 924/non-924 sentence, in a single [judgment

and conviction], means that the counts have

been aggregated into a single sentence . . . as

required by 18 U.S.C. § 3584(c).” In other words,

BOP Policy Statement 5880.28 covers

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